Benbow v. N. C. Railroad Co.

Whether Rail Road companies are compellable to furnish hands to remove heavy articles from the platform to wagons sent to haul them away, is a question into which we do not enter, except to remark that such a practice would greatly promote the convenience of persons who employ the road and add much to its business.

We also refrain from expressing an opinion how far, if there be such a practice, the Rail Road companies would be liable for loss as common carriers, or merely as bailees for hire, (we put out of the question the notion of a gratuitous bailment) because it is not set out in the case, whether there is such a practice at the Greensboro Station or not, and it may be that the attempt in this case to load the wagon is attributable to a desire to get the molasses into the wagon at an unusual and very unfit place, because of the difficulty of getting the car up to the right place. So this instance does not furnish any ground sufficient to infer a practice.

As is said in Hilliard v. R. R. Co., 6 Jon., 343: "We prefer feeling our way until the necessity of the decision in some case may require a direct determination."


Judgment reversed, and judgment here for plaintiff.

State v. Owen.


A special venire having been summoned for the trial of a prisoner upon a day previous to the day of trial, held that a successful challenge by the prisoner to the array of the original panel did not necessarily affect the competency of the special venire to act as jurors in the case.

Where one who had been insulted ran a short distance to his house to procure a gun, and then pursued the deceased, (who had ridden off,) in order to exact an apology, or failing in that, to do him great bodily harm, or kill him, held that, if upon his approach, the deceased turned upon him, putting his hand to his side as if to draw a weapon, and was thereupon killed by a blow of the gun, the prisoner was guilty of murder. (State v. Benton, 2 D. & B., 196; State v. Lytle, 5 Ire., 58; State v. Shaw, 3 Ire., 532; State v. Madison Johnson, 1 Ire., 354; State v. Jacob Johnson, 2 Jon., 247; cited and approved.)

MURDER, tried at Fall Term 1867 of the Superior Court of GASTON, before Gilliam, J.

Upon the trial the prisoner challenged the array of the original panel on the ground that the jury lists had not been made out in accordance with the statutes of the State, or with the order of General Sickles. The cause was admitted by the Solicitor, and by consent the array was quashed. A special venire had been ordered on a previous day, and as the names upon it were being called, the prisoner challenged that array on the ground that as the original panel had been set aside, the special venire could not be resorted to. This challenge was overruled, and a jury was drawn from this panel. To this the prisoner excepted.

After the State had made out its case, the defendant introduced Dr. Sloan, and proceeded to give in evidence (no objection being made) a conversation about the homicide between himself and the witness a few days after it occurred. In the course of that conversation the prisoner, after giving an account of his having gone to Beatty's Ford with the

State v. Owen.

deceased in his buggy in the former part of the day, of his returning in the same way with him, and their eating dinner together at the prisoner's house, of some quarrel on politics in the house and an indulgence by the deceased in drinking, of his being helped by the prisoner into his buggy and starting towards home-went on to say that he accompanied the deceased to the gate, and when the latter had gotten outside, some conversation ensued, in the course of which the deceased told one Caldwell who was present, "Owen is the damnedest rascal I ever saw," and after something more, "that he might help himself." Prisoner replying, "if you will give me a few minutes, I will help myself," went to the house, and getting a gun, returned, and finding the deceased had gone, pursued him. When he overtook him the deceased got out of his buggy and came to meet him. He added that he knew deceased was armed and always went so, and seeing him put his hand to his side as if to draw a pistol, he struck downward with his gun and deceased fell like a beef.

Upon this the Court was asked to charge the jury that if they believed the above to be a true account of the homicide, and that the prisoner killed the deceased to save his own life, he was guilty of manslaughter only.

The Court declined to give that instruction, and told the jury that if the prisoner armed himself with a gun and followed the deceased in order to demand satisfaction for the insult which he had received, or failing in that, to kill the deceased or do him some great bodily harm, the killing, even as he had described it to Dr. Sloan, would be murder.

Verdict Guilty; Rule for New Trial discharged; Judgment, and Appeal.

Vance and Bragg, for the prisoner.
Attorney General, contra.

State v. Owen.

BATTLE, J. We have examined with care the errors assigned in the bill of exceptions, both for a venire de novo and for a new trial, without being able to find anything to sustain either of them.

The objection to the formation of the jury, upon which the motion for a venire de novo was founded, is clearly untenable. The challenge to the array of the original panel of jurors by the prisoner, and the admission by the Solicitor for the State of the cause of challenge, made it absolutely necessary to resort to the special venire, just as it would have been had the prisoner challenged each juror separately. In the latter case the jurors summoned on the special venire would have properly been called in, and we cannot perceive any good reason why the same course was not admissible when the whole original panel was set aside at the instance of the prisoner. State v. Benton, 2 D. & B., 196; State v. Lytle, 5 Ire., 58; State v. Shaw, 3 Ire., 532.

The objection to the charge of the Judge upon which the motion for a new trial was based is also untenable. The instruction which the prisoner's counsel requested to be given the jury upon the testimony of his witness, Dr. Sloan, was, that if they believed the circumstances of the homicide were correctly stated by the prisoner in his interview with the witness Sloan, and that the prisoner killed the deceased to save his own life, he could not be convicted of murder, but of manslaughter only. The Judge declined to give the instructions in the terms asked, and we think he did so properly, because it left out of view the material and important fact, that the testimony of the witness tended to prove that the prisoner had followed the deceased. with a deadly weapon for the purpose of demanding satisfaction for the insult given him, and to kill deceased, or to do him great bodily harm, should the demand for satisfaction be refused. The Judge, therefore, was right to adapt his

Deaver v. Keith.

charge to the facts proved, and according to them the prisoner was undoubtedly guilty of murder. See State v. Madison Johnson, 1 Ire., 354, as explained and corroborated in State v. Jacob Johnson, 2 Jon., 247.

It must be certified to the Superior Court of law for the county of Gaston that there is no error in the record.


There is no error.


A court has no power to grant a judicial attachment after a return of “not found" made upon a writ issued against a non-resident: and where under these circumstances such a writ had been taken out, held that it was the duty of the Court to dismiss it on motion made by or for the defendant, or even ex mero motu.

(Webb v. Bowler, 5 Jon. 362, and Israel v Ivey, at this term; cited and approved.)

JUDICIAL ATTACHMENT (upon a motion to dismiss) before Buxton J., at Fall Term 1867 of the Superior Court of MAD


The plaintiff issued a writ in Trespass against the defendant, returnable to August Term 1866 of the County Court of Madison. The defendant was a non-resident of the State and the writ was returned "not found." Upon motion, at that Term, a judicial attachment against the property of the defendant was granted the plaintiff, no affidavit or bond being required of him, and the attachment was duly levied. Upon the return of the proceeding, the defendant's counsel, without filing a replevy bond, moved to dismiss. The motion was refused and the defendant appealed to the Superior

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