{
  "id": 8651998,
  "name": "STATE v. TOM SIMONDS",
  "name_abbreviation": "State v. Simonds",
  "decision_date": "1910-12-20",
  "docket_number": "",
  "first_page": "197",
  "last_page": "200",
  "citations": [
    {
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      "cite": "154 N.C. 197"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "141 N. C., 767",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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    {
      "cite": "133 N. C., 769",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "98 N. C., 599",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11275547
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      "opinion_index": 0,
      "case_paths": [
        "/nc/98/0599-01"
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    {
      "cite": "107 N. C., 805",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11275068
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      "opinion_index": 0,
      "case_paths": [
        "/nc/107/0805-01"
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  "analysis": {
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  "last_updated": "2023-07-14T20:16:36.957085+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. TOM SIMONDS."
    ],
    "opinions": [
      {
        "text": "Brown, J.\nThe evidence tends to prove that the deceased was killed by defendant at the residence of one Mollie Brooks about midnight on 10 June, 1909, in the city of Asheville; that illicit relations existed between the woman and the defendant; that the deceased came to the house, while the woman was out, and inquired of defendant her whereabouts. The deceased and defendant had some words, and a pistol duel ensued, in which defendant fired four times and killed deceased. The defendant admitted the killing and set up the plea of self-defense.\nThe defendant, represented by counsel, was introduced as a witness in his own behalf, and upon cross-examination was asked if he had not held sexual intercourse with Mollie Brooks. His counsel interposed an objection, which was overruled. Thereupon the defendant testified that he had had sexual intercourse with the woman.\nIt is settled law in this State that when a person charged with crime voluntarily testifies in his own behalf he waives his constitutional privilege not to answer questions tending to incriminate him. S. v. Allen, 107 N. C., 805. Under such circumstances, he can be asked questions as to other and distinct crimes as well as used to prove the very offense with which he stands charged. S. v. Thomas, 98 N. C., 599.\nThere are only three assignments of error noted in the defendant\u2019s brief. They are as follows:\nException 3: \u201cHis-Honor charged the jury as follows: If, however, the defendant has satisfied you that the killing was without malice, then, unless be bas further satisfied you that be killed him from necessity or from a principle of self-defense, your verdict must be guilty of manslaughter. We respectfully submit that this is not the law.\u201d\nException 5: \u201cHis Honor charged the jury as follows: If you find that the defendant was ready and willing to enter into a combat with the deceased, and that a mutual combat occurred, both the defendant and the deceased entering into it willingly, then the defendant cannot be excused for taking the life of the deceased to save his own, no matter to what extremity he may have been reduced, unless he definitely withdrew from the combat before he fired tjj.e fatal shot, for in that case it may rightfully and truthfully be said that he brought the necessity upon himself by his own criminal conduct.\u201d\nException 6: \u201cHis Honor also charged the jury as follows: If you find from the evidence that the deceased and the defendant met and a sudden quarrel arose and a fight ensued, in which both parties willingly engaged and in which both parties used deadly weapons, and in which deceased was killed, then the defendant would be guilty of manslaughter.\u201d\nThe error which the defendant alleges in both these exceptions is that there is no evidence that the defendant \u201cfought willingly.\u201d\nAs to exception 3: If his Honor had charged the jury that the defendant must satisfy the jury that he killed from necessity, and stopped there, he would have been in error. S. v. Castle, 133 N. C., 769. But his Honor added, \u201cor from a principle of self-defense.\u201d\nHis Honor\u2019s charge is not in the record, and it was appellant\u2019s duty to send it up. The record contains only the defendant\u2019s assignments of error and a verbatim, copy of the stenographer\u2019s notes. But we are bound to assume the experienced lawyer and judge, who presided, correctly explained to the jury what are the \u201cprinciples of self-defense\u201d expounded in so many decisions of this Court, and had he not done so, exception would have been taken and the charge sent up.\nThe ground of attack embodied' in exceptions 5 and 6, as stated in the brief, is that there is no evidence that the defendant fought willingly. The actual killing of the deceased with a pistol having been admitted by defendant, the State was not bound to prove that defendant fought willingly. The law presumes that he did, and the onus is upon him to offer evidence sufficient to satisfy the jury that he fought in self-defense, or, failing in that, to offer evidence sufficient to reduce the crime to manslaughter.\nThis rule has been uniformly adhered to by this Court in indictments for homicide. It is said in S. v. Worley, 141 N. C., 767: \u201cNo principle in our criminal law is better settled than that a killing with a deadly weapon implies malice, and, when admitted or proved, the prisoner is guiltg of murder in the second degree, and the burden rests upon him to prove the facts upon which he relies for mitigation or excuse, to the satisfaction of the jury.\u201d\nIn that case and S. v. Quick, 150 N. C., 821, the authorities are cited.\nNo error.",
        "type": "majority",
        "author": "Brown, J."
      }
    ],
    "attorneys": [
      "Attorney-General and G. L. Jones for the State.",
      "Franh Garter and Graig, Martin & Thomason for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. TOM SIMONDS.\n(Filed 20 December, 1910.)\n1. Witnesses \u2014 Questions\u2014Incriminative\u2014Waiver.\nBy voluntarily answering a question on cross-examination after objection thereto by his attorney, a defendant waives his constitutional privilege not to answer questions tending to incriminate himself, both as to other and distinct crimes and those used to prove the offense with which he stands charged.\n2. Murder \u2014 Manslaughter\u2014Act of Necessity \u2014 Self-defense\u2014Instructions \u2014 Presumptions.\nUpon trial on an indictment for murder the judge charged the jury that unless the defendant \u201chas further satisfied you that he killed him (deceased) from necessity or from a principle of self-defense, your verdict must be guilty of manslaughter\u201d: Held, not reversible error, defendant having failed to send up the charge of the court, and the presumption being that he correctly charged upon the law of self-defense.\n3. Murder \u2014 Manslaughter\u2014Self-defense\u2014Deadly Weapon \u2014 Willing Acts \u2014 Burden of Proof.\nIt being admitted that defendant killed deceased with a pistol, it.is for him to prove .that it was done in self-defense, if that plea is relied on; and an objection that there was not sufficient evidence that he acted willingly is not tenable, the law presuming that he did.\nAppeal from Joseph 8. Adams, J., at November Term, 1910, of BUNCOMBE.\nThe defendant was indicted for the murder of Albert Murphy. Before the jury was impaneled the solicitor for the State stated that he would not ask for murder in the first degree, but only for a verdict of murder in the second degree or manslaughter. The jury rendered a verdict of manslaughter. From the judgment of the court the defendant appealed.\nAttorney-General and G. L. Jones for the State.\nFranh Garter and Graig, Martin & Thomason for defendant."
  },
  "file_name": "0197-01",
  "first_page_order": 239,
  "last_page_order": 242
}