Catawba County NcArchives Court.....Avery Kale, State V. 1899
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Connie Ardrey n/a December 13, 2011, 8:38 pm

Source: N C Reports
Written: 1899

State v. Avery Kale

(Decided April 25, 1899)

Indictment for Murder - 1st and 2nd Degree - Voluntary Intoxication

1. Voluntary drunkenness is never an excuse for the commission of a crime.

2. If one charged with murder has premeditated and deliberately formed the 
intention to kill, and did kill the deceased, when drunk, the offense is not 
reduced to murder in the second degree.

3. Of course, the killing and its manner, the intent, intoxication, how it 
comes about, and for what purpose drunkenness takes place, and the like, are 
questions for the jury under the Court's instructions as to the law applicable 
thereto.

Indictment for murder of George Travis, tried before Coble, J., at Fall Term, 
1898, of the Superior Court of Catawba County.

The prisoner and deceased were in the employment of A. S. Alley, who ran a 
government distillery in Catawba County in 1898. There was evidence that the 
prisoner entertained bad feelings towards the deceased, on account of the 
deceased having supplanted him in his position at the distillery, and because 
of his being a witness on an indictment at Court against him.

The prisoner was given to bad spells of drinking and had repeatedly uttered 
threats against the deceased. On 13th August, 1898, the prisoner had been 
drinking some, and went with his gun to the still house inquiring for George 
Travis and threatening to kill him. Travis was in the still house and in about 
two minutes after prisoner entered, the report of a gun was heard inside, and 
prisoner came out saying he had killed the d-----d scoundrel. Travis was found 
by a witness who immediately entered the still house, mortally wounded with 
shot in the head and unconscious. He died the next day. The prisoner left the 
State and was brought back from Florida by the sheriff.

No evidence was offered on the part of the defense.

His honor gave all the special instructions asked for by the prisoner except 
the 5th which was refused; it was as follows:

5th. That if the jury believe from the evidence that the defendant had been 
drinking to excess during the week in which the homicide occurred; that at the 
time of the committing the homicide was intoxicated, and by reason of these 
facts, they believe that the homicide was the rash act of a drunken man, 
rather than the vicious act of a sober man, then the prisoner would not be 
guilty of murder in the first degree.

To the refusal of his Honor to give the special instruction the prisoner 
excepted. The charge of his Honor was very elaborate - defined the various 
grades of homicide, and presented the case in its various phases presented by 
the evidence to the consideration of the jury, and elicited the encomium 
expressed in the opinion of its faithful compliance with Section 413 of The 
Code relating to the duty of a trial Judge.

The jury rendered a verdict of guilty of murder in the first degree.

The sentence of death was passed upon the prisoner - and he appealed.

Messrs. Feimster & Yount, for appellant
Zeb. V. Walser, Attorney General, for the State

NC Supreme Court Justice Faircloth, C. J. - We have given the case appearing 
in the record out best attention and fail to find anything in the course of 
the trial prejudicial to the prisoner's rights. (see court case for judge's 
full findings)

Affirmed.

Additional Comments:
In the NC Supreme Court February Term 1899

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