{ "id": 8698685, "name": "STATE v. JOSEPH MAZON", "name_abbreviation": "State v. Mazon", "decision_date": "1884-02", "docket_number": "", "first_page": "676", "last_page": "684", "citations": [ { "type": "official", "cite": "90 N.C. 676" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "1 Jones, 190", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 8682036 ], "opinion_index": -1, "case_paths": [ "/nc/46/0190-01" ] }, { "cite": "89 N. C., 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683408 ], "opinion_index": -1, "case_paths": [ "/nc/89/0481-01" ] }, { "cite": "89 N. C., 593", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "63 N. C., 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276224 ], "opinion_index": -1, "case_paths": [ "/nc/63/0026-01" ] }, { "cite": "77 N. C., 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683087 ], "opinion_index": 0, "case_paths": [ "/nc/77/0488-01" ] }, { "cite": "89 N. C., 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683446 ], "opinion_index": 0, "case_paths": [ "/nc/89/0539-01" ] }, { "cite": "21 Tenn., 434", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8543317 ], "opinion_index": 0, "case_paths": [ "/tenn/21/0434-01" ] }, { "cite": "1 Jones, 190", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 8682036 ], "opinion_index": 0, "case_paths": [ "/nc/46/0190-01" ] }, { "cite": "89 N. C., 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683408 ], "opinion_index": 0, "case_paths": [ "/nc/89/0481-01" ] }, { "cite": "63 N. C., 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276224 ], "opinion_index": 0, "case_paths": [ "/nc/63/0026-01" ] } ], "analysis": { "cardinality": 892, "char_count": 18449, "ocr_confidence": 0.45, "pagerank": { "raw": 8.989848728340549e-08, "percentile": 0.5028297016544208 }, "sha256": "fa0f1daaabfe287175e00c3ed232a0a1d879be0e9f2876111098e0da3f670a0e", "simhash": "1:ff2fdd64dc500f7d", "word_count": 3291 }, "last_updated": "2023-07-14T20:11:38.032493+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. JOSEPH MAZON." ], "opinions": [ { "text": "Smith, C. J.\nThe prisoner is charged in the bill of indictment with the murder of C. F. Lawrence, committed in the-month of June, 1882, and on his trial before the jury was found guilty.\n1. The first exception presented in the record is to the form of the oath taken by the witnesses, none of them repeating its \u2022closing words and making a personal appropriation of them to himself by adding \u201cso help me God,\u201d and especially to the manner in which the witnesses for the state were sworn.\nThe oath prescribed by the statute to be administered to every \u25a0witness in a capital trial is as follows:\n\u201c Yon swear (or affirm) that the evidence you shall give to the \u25a0court and jury in this trial between the state and the prisoner at 'the bar shall be the truth, the whole truth, and nothing but the truth, so help you God,\u201d Bat. Bev., eh. 77, \u00a76, par. 34; and then the witness is directed to repeat \u201cso help me God,\u201d and kiss the Holy Gospels, \u00a71.\nThe oath was thus taken by the witnesses of the'prisoner, except in the omission to repeat, while it was administered to those \u25a0of the state in this changed phraseology:\n\u201cYou solemnly swear the evidence that you and each of you \u25a0shall give to the honorable court and jury against Joe Mazon, the prisoner at the bar, shall he the truth, the whole truth, and nothing but the truth, so help you God,\u201d with the like omission.\nThe discrepancy in the manner of swearing the two classes \u2022of witnesses was not observed by the judge, solicitor or prisoner\u2019s \u25a0counsel while the trial was in progress, nor until after the charge; the jury had retired to consider the case and make up their ver\u25a0dict. Then it was discovered by prisoner\u2019s counsel, and the fact \u25a0was made known to the judge and an exception thereto noted.\nHow this oversight occurred, and why a different oath was administered to the separate classes of witnesses when the law furnishes one form for all, is unexplained, nor does any satisfactory reason therefor occur to us. It is a singular circumstance that the regular mode of swearing one set of witnesses should have been pursued and another mode adopted for the others, and this \u25a0not communicated by counsel until after the cause had passed into the hands of the jury.\nBut we are of opinion that the omission and variation do not constitute such substantial departures from the provisions of the statute as to fatally infect the verdict and entitle the prisoner Ur another jury. The general assembly could not have, intended, in putting in form the different oaths to be taken by officers, public agents and others to insure the faithful performance of their respective duties, to prescribe an inflexible iron formula, admitting of no deviation in words, while the substance is preserved; hut rather to direct and point out the essential matters to be embraced in the oath.\nTo hold invalid an oath that did not follow the very words of the statute, might prove disastrous to the public interests. \u201cPerjury and slander,\u201d in the language of the supreme court of Tennessee, \u201ccould often find, in slight variances from the prescribed forms of oath, the means of escape from condign punishment which justice invokes. Undoubtedly an oath, administered substantially according to the prescribed form, will be valid, and if taken falsely the party will be guilty of perjury.\u201d\" Sharp v. Wilhite, 21 Tenn., 434.\n\u201cThe legislature did not design,\u201d says GkekN, C. J., \u201cto prescribe the precise form of the oath, the slightest deviation from the phraseology of which would prove fatal,\u201d State v. Daylor, 3 Zab. (N. Y.), 49.\n\u201cAs to the form of the oath, when it is prescribed by statute,\u201d' remarks Mr. Bishop, \u201cthe statute is to be construed in some sense directory only, so far at least that a departure from the words, in matter not of substance but of form merely, docs not exempt the person taking it from the pains of perjury.\u201d 2 Bish. Cr. Law', \u00a7\u00a7862, 982.\nA witness for the state was required to swear that his evidence given \u201cagainst Joe Mazon, the prison\u00e9r at the bar, shall be the truth,\u201d &o., and this the counsel interprets as imposing an obligation upon the conscience of the witness to testify truly where his testimony is adverse, which does not rest upon his conscience where it may be favorable to the prisoner. If this criticism were well founded, it would be of great force ; but in our opinion it is not warranted by the form of the oath taken.\nIn a general sense every witness is understood to testify for the party introducing him, and the aggregate evidence offered is the evidence of such party. No distinction is drawn between such as sustains the one side or the other. The testimony is said to be for the state or for the accused, accordingly as it proceeds from witnesses produced by the one or the other.\nIf a witness be produced and sworn for the King, yet if that witness allege any matter in his evidence that is for the prisoner\u2019s advantage (as many times they do) that stands as a testimony on oath for the prisoner as well as for the King.' Regularly the ICinc/s evidence is given upon oath against the prisoner, and ought not to be admitted otherwise than upon oath. 2 Hale P. C., 283, 284.\nIn 4 Chitty\u2019s Criminal Law, 313, this form is given for swearing a witness for the King:\n\u201cThe evidence which you and every of you shall give for our sovereign Lord, The King, against the prisoner at the bar shall bo the truth, the whole truth and nothing but the truth, so help you God.\u201d It cannot admit of doubt that such an oath reaches the conscience of the witness and exacts from him, form under the penalties of perjury, a disclosure of all that he knows material to the issue of the prisoner\u2019s guilt, and comprehends just as much what mitigates or excuses the charge as what tends to establish the prisoner\u2019s guilt.\nSubstantially the obligations assumed under either form of oath are the same, and perjury may be assigned in the corrupt withholding of known facts favorable to the accused in the one ease as well as in the other.\nIn reaching this conclusion we wish to mark our decided disapproval of the practice of departing from well established forms, and the more so, where they have been prepared and prescribed by the law-making power.\nThe other branch of the exception based upon the omission to repeat the words \u201cso help me God \u201d by the witness is equally untenable. Indeed, the.very point is disposed of in the recent case of State v. Paylor, 89 N. C., 539, and wesliould be content with a simple reference to it, but that we find the same ruling- to bave been made in the court of Queen\u2019s Bench in The Lancaster & Carlisle Railway Co. v. Heaton, 8 Ellis & Black (92 E. C. L. Rep.), 952. In that case, the same words prescribed in the statute, \u201cso help mo God,\u201d were omitted, in taking the oath. Lord CaMPBELE, C. J., in answer to the objection, said Rewords, \u201cso help me God,\u201d were not part of the oath. They only-point out the mode of administering it, adding, and such was the decision in Solomon v. Miller, 3 Exch. (W. H. & G.), 778.\nThe testimony produced by the state to support the charge was in substance this :\nThe prisoner, deceased and others were in tlte employment of the Spartanburg and Asheville railroad company, under the control of one Cook, who on the day of the homicide, ordered the \u201cpush-car\u201d to be put on the track. The prisoner came out of tlte tool-house, with a green hickory stick in his hands some three feet in length and one and a half inches thick, which the deceased, not himself, had been directed to bring out to be made into a handle for a hammer. Cook directed him to put the stick on the car and go to work, instead of which he retained it, a part of the time resting upon his shoulder. Cook, while walking behind the moving car, some 90 or 100 yards from it, saw the prisoner and deceased in the road, in a quarrel, and hastened towards them. When about half way he heard the prisoner call the deceased a damned liar, the latter then standing on the track and looking down. The prisoner advanced on him, when deceased picked up a rock and threw it at the prisoner, a part of it striking him on the breast.\n\u25a0 The parties then approached each other and met, and prisoner, with the stick in both hands, gave a blow on the side of the head of the deceased, who seemed to be dodging, and knocked him down. In attempting to rise, a second blow was given.' The deceased had a knife in his hand, and while apparently dodging, shifted it from one hand to the other.. The blow on the head brought on concussion of the brain from which death ensued in \u00ab few hours. There was some evidence of threats and previous ill will on the part of the prisoner towards the deceased.\nThe witnesses for the prisoner gave a somewhat different version of the matter. They represent that the offensive words, \u25a0\u201c damned liar,\u201d first came from the deceased, and in response were repeated by the prisoner and applied to the former; that when the rock struck the prisoner, the deceased run at him with an \u2022open knife, and when near enough was felled to the ground by the blow given by the prisoner, and a second blow, over the shoulder, was stricken after deceased had fallen from the first; that deceased had carried his knife for 200 or 300 yards, and it was seen by prisoner put up under his sleeve; that when the parties came together after the throwing of the rock, the deceased went under the prisoner, with his knife in hand, bent ns if about to cut with it, both advancing to the fight.\nThis summary of the evidence is sufficient for a proper understanding of the charge and the exceptions to it now to be reviewed on the prisoner\u2019s appeal.\nThese instructions were asked for the prisoner upon the different aspects of the evidence:\n1. If the jury find that the prisoner killed deceased with a stick of the dimensions prescribed, the rule laid down in State v. Willis, that the burden of showing matter in mitigation, excuse \u25a0or justification to the satisfaction of the jury rests upon the prisoner, does not apply, and if the jury have a reasonable \u25a0doubt upon the whole evidence, the prisoner is entitled to it.\n2. If the matter in mitigation, excuse or justification arise out \u25a0of the evidence adduced for the state, the burden is not on the prisoner, and he is entitled to the benefit of any doubt arising therefrom.\n3. If the parties fought upon a sudden quarrel by consent, with deadly weapons and on equal terms, no undue advantage being taken, the killing is manslaughter.\n4. If the prisoner was. assaulted by the deceased 'with the rock and immediately resented the blow by killing the deceased,, acting in heat of blood, his offence is manslaughter.\n5. If the deceased after throwing the rock immediately advanced on the prisoner with a drawn knife, intending to kill or inflict some great bodily harm, the prisoner was not bound to retreat, but had a right to stand his ground and kill the deceased,, and not only to do this, but to pursue his assailant till out of danger himself, and if in the conflict that followed he slew his adversary, it would be justifiable.\n6. If when the prisoner gave the fatal blow he had reasonable ground to believe, and did believe, that deceased was about to take his life or inflict some great bodily harm, he had a right to defend himself, and, if necessary, kill the assailant.\nIn response to the prayer for instructions, the court proceeded to charge the jury as follows:\nAfter describing the several grades of homicide and declaring-the instrument used to be a deadly weapon, to which there was-no exception, the court said:\n1. If the prisoner made the threats, prepared the stick with a view of provoking and bringing on the 'fight, and did provoke- and bring it on, with intent to use the stick and kill the deceased,, his crime would be murder in killing him.\n2. If the affray was sudden, both parties being willing to fight, and no undue advantage taken by the prisoner, the killing would be manslaughter.\n3. If the deceased made the attack with the rock and a knife, the prisoner not having provoked it nor willing to engage in it, then the prisoner in self-defence might use the necessary means-therefor, and that the jury, not the prisoner, must judge of the necessity.\n4. If a deadly weapon was used and the attack on the prisoner made so as to indicate a purpose to endanger life or inflict great bodily harm, he was not compelled to flee, but had a right to defend his person and to pursue his adversary to disarm him, but for ho oiher purpose.\nAt the close of the charge and at the instance of the prisoner\u2019s counsel and his suggestion that the jury had not been directed in case they had a reasonable doubt of the guilt of the accused, the court added that if the jury had a reasonable doubt as to the fact of the homicide, the prisoner was entitled to the benefit of it.\nThe two first instructions asked are but an effort to induce the court to reconsider and reverse its repeated rulings in the assertion and enforcement of the doctrine declared in the case referred to, State v. Willis, 63 N. C., 26, and the preceding cases of State v. Ellick, 2 Winst., 56, and State v. Haywood, Phil., 376, and which has since been affirmed in State v. Smith, 77 N. C., 488; State v. Brittain, 89 N. C., 481, and State v. Carland, at this term, ante, 668.\nIf anything can be settled and put at rest by judicial decisions, this principle has been, and we cannot now permit it to be drawn in question without impairing the confidence which ought to be reposed in the integrity and stability of the judicial administration of the law.\nThe third instruction requested was given in substantially similar terms.\nThe response to the fourth instruction, conforming more to the aspect of the evidence favorable to the prisoner, differs from that requested by inserting the additional\u2019 words, \u201che, the prisoner, not being willing to engage in the fight and not provoking it,\u201d and concluding that \u201cthe jury, not the prisoner,\u201d must judge of the necessity of the means employed in repelling the assault. The modification gives to the prisoner all the protection the law affords him in mitigation of his act by reason of the heat of blood. But it was proper to qualify the general proposition, by excluding the idea of the prisoner\u2019s voluntary participation in bringing on or provoking the fight, or that the law made him the judge of the necessity of resort to a deadly weapon, instead of leaving to the jury to determine whether he had reasonable trrounds for his conduct.\nThe last instruction varies from that asked in one material particular only, and of this the prisoner cannot complain. The jury were told that the prisoner not only was not compelled to flee from the fierce impending assault which menaced life or great bodily harm, \u201cbut had the right to pursue his adversary for the purpose of disarming him, and for no other,\u201d but they were not directed, in the words of the praver, that the prisoner could pursue his assailant till out of danger himself, and if a conflict was thus brought on and the prisoner killed the deceased, this act would be justifiable. The charge is more appropriately guarded in confining the pursuit of the deceased to the object of disarming him and averting personal peril to himself. .Human life is sacredly guarded by the law, and while indulgence is shown to passion suddenly aroused by adequate legal provocation, as an infirmity in nature', life can never be lawfully taken unless when another is put in imminent peril, and then only where there are no reasonable means of protecting it but to take the life of the assailant. State v. Ellick, supra, and authorities referred to; State v. Harris, 1 Jones, 190.\nThe court might have declined giving this instruction as not called for in any view of the evidence. When the deceased fell under the first, the mortal blow, and was struggling to get up, it can hardly be said that this and the next which fell upon his shoulders were in self-defence and for the prisoner\u2019s safety, and this is the most favorable aspect of his case.\nUpon the whole, we think the charge obnoxious to none of the objections so earnestly urged in the effort to save his life.\nThe case seems to have been fairly explained to the jury, and the conclusion they have reached, under the directions of the court, we must leave undisturbed.\nThere is no error, and this will be certified to the end that the court below proceed to judgment according to the verdict.\nNo error. Affirmed.", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "Attorney-General, for the State.", "Messrs. W. J. Montgomery, D. Schench and JR.eade, Busbee &\u2022 Busbee, for the prisoner." ], "corrections": "", "head_matter": "STATE v. JOSEPH MAZON.\nOath, administration of to witness \u2014 Homicide\u2014Judge\u2019s Charge-\n1. An oath administered substantially in the form prescribed by statute is sufficient, and hence it was held that the omission of a witness to repeat the-words \u201cso help me God,\u201d is not assignable for error. The words are no part of the oath.\n\u2022 2. A witness for the state was required to swear that his evidence \u201c.against\u201d the-prisoner at the bar shall ho the truth, &c.; Held, that the oath exacts from, (he witness, under penalties of perjury, all he knows material to the issue,, and comprehends as well what mitigates as what tends to estalish guilt-But the court recommend that the form prescribed by law be followed.\n3. The rule laid down in Willis\u2019 case, 63 N. C., 26, that the burden of proving. matter of mitigation rests upon the prisoner, &c., and affirmed hv repeated decisions of the court, is the settled law of this state.\n4. The court charged the jury in this case that \u201c if deceased attacked with the-rock and knife, the prisoner, not having provoked the fight nor willing to-engage in it, might use the necessary means of self-defence, but the jury and not the prisoner must judge of the necessity. And if a deadly-weapon was used, and the attack indicated a purpose to endanger the \u00a1u-is-oner\u2019s life or inflict great bodily harm, he was not compelled to flee, but! might defend his person and pursue his adversary, to disarm him, but fon-no other purpose Held, no error.\n(Slate v. Paylor, 89 N. C., 593; Stale v. Willis, 62 3ST. G., 26; Stale v. Elliek, 2: Winst., 56; Slate v. Haywood, Phil., 376; State v. Smith, 77 N. C., 48S State v. Brittain, 89 N. C., 481; State v. Harris, 1 Jones, 190), approved.\nINDICTMENT for murder tried at Spring Term, 1883, of Pout Superior Court, before Shipp, J.\nVerdict of guilty; judgment; appeal by the prisoner.\nAttorney-General, for the State.\nMessrs. W. J. Montgomery, D. Schench and JR.eade, Busbee &\u2022 Busbee, for the prisoner." }, "file_name": "0676-01", "first_page_order": 692, "last_page_order": 700 }