Cleveland County NcArchives Court.....John Hambright, State V. 1892
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Source: N C Reports
Written: 1892

The State v. John Hambright

Homicide - Mortal Wound - Evidence - Excuse - Charge

1. In defense against an indictment for murder, it is no excuse to show that 
had proper caution and attention been given a recovery might have been 
effected. Neglect or maltreatment will not excuse, except in cases of doubt as 
to the character of the wound.

2. But if the deceased, while languishing of a mortal wound, is killed by a 
second assailant, the first is not guilty of murder.

3. If the wound is mortal - sufficient to produce death - and death follows, 
it will be attributed to the wound, even though death was facilitated by some 
act of the deceased.

4. There being no evidence of any intervening cause of death, it was not error 
to refuse instructions upon it.

Indictment for murder, tried before Bynum, J., and a jury, at Spring Term, 
1892, of Cleveland Superior Court.

The State proved that on the night of the sixth day of January, 1891, Jenks 
Macobson, colored, was shot in the right thigh with a load from a shot gun in 
the yard of Laura Bridges, also colored, in the town of Shelby. Shortly after 
the deceased was shot he was carried by colored men into the house of the said 
Laura Bridges, where he lay upon the floor until the arrival of a physician, 
about an hour afterwards. He was given medical treatment, and, at his own 
request, about noon the next day, was carried from the house in which he had 
lain to the railroad train, where he was placed in the baggage car and carried 
to Blacksburg, South Carolina, fifteen miles away. It was in evidence that 
about four hours after his arrival he was given medical attention, and died 
during the night of the 8th of January.

The State introduced Dr. D. S. Ramseur, who testified as follows: "I was 
called to see Jenks Macobson at Blacksburg the day after he was carried from 
here. He was suffering from a gun shot wound in the thigh. I examined and 
treated him. He lived through the next day and died sometime during the next 
night. He died from the wound. I think it was a mortal wound. I probed around 
after his death and found some small mixed shot, and noticed one of the larger 
shot flattened. I took out of his thigh about a half dozen shot and gave them 
to the Sheriff."

On cross examination the witness testified: "I think that Macobson died from 
shock. There was no hemorrhage in Blacksburg, and I saw no evidence of any 
previously. I could not tell whether there had ever been any reaction from the 
primary shock. I mean by shock an injury to the vital parts reflected on the 
nerve centers, depressing the whole system and reducing the action of the 
heart. If a man suffering from a sever gun shot wound were carried from a 
house to a train, transported fifteen miles in a baggage car, and taken thence 
to a house some distance from the station, the transportation might have 
increased the shock."

In answer to the question whether such transportation would not necessarily 
have reduced the condition of a severely wounded patient, the witness 
said, "Yes; if the scales of life and death were evenly balanced, such 
transportation would have killed the patient. If the patient had bridged the 
shock, he might have died from gangrene or blood poisoning; but he would not 
have died from direct injury as a man dies who is shot through the heart or 
brain. I found no shot that had entered a vital part. The femoral artery was 
in the region of the wound, but, if it had been severed, the man would have 
died very soon after the wound. There was not time for gangrene or blood 
poisoning. The man's pulse was weak. I did not think, until the second day I 
saw him, that he would die. The thigh bone appeared shattered. I did not think 
the time opportune for a resection."

Dr. T. E. McBrayer, admitted to be an expert, was introduced by the State, and 
testified as follows: "I was called to see Jenks Macobson on the night of 
January 6. He was in the house of Laura Bridges lying on some old quilts, and 
suffering intense pain. I gave him spirits and injected morphine. I found him 
shot in the lower portion of the upper third of the thigh. About four inches 
of the bone seemed shattered and riddled with shot. I told him that there was 
no chance for him except amputation or re-sectioning. He said he did not want 
it done, but wanted to go to Blacksburg. I saw him next morning and found him 
cheerful. He said he had had a good night's rest. His pulse was better. His 
bladder would not act, appearing somewhat paralyzed from shock. I drew his 
water and sent him to Blacksburg. If an operation had been performed, the day 
after he was shot was the time to do it; I do not know that it could have been 
successfully done the night he was shot. His pulse and condition were better 
next day. A gun shot wound like that would likely produce death. I cannot say 
certainly that the wound was mortal. I do not think the moving him necessarily 
produced death, though it would have had some effect. I cannot say that it was 
advisable to move him. It would have caused worry and weariness and made the 
shock worse."

The State introduced testimony tending to show that the defendant was the 
person who fired the shot at the deceased on the 6th of January, 1892. Such 
evidence tended to show that the defendant did not take the gun for the 
purpose of assaulting the deceased, and did not know that the deceased was at 
the house of Laura Bridges until the defendant arrived there. The State also 
introduced confessions of the defendant, in which he admitted that he shot the 
deceased, but did not intend to kill him. The defendant offered no evidence.

Counsel for defendant asked his Honor to charge the jury as follows:

"1. If the defendant inflicted a wound upon Jenks Macobson that was not 
necessarily mortal, but Macobson's death was immediately caused by his being 
carried from Shelby to Blacksburg at his own request, the defendant is not 
guilty of murder, but of assault, with or without intent of murder, as the 
jury may find.

"2. If the defendant did inflict a mortal wound upon Jenks Macobson, but the 
immediate cause of Macobson's death was his transportation, at his own 
request, from Shelby to Blacksburg, the defendant is not guilty of murder, but 
of assault, with or without intent to kill, as the jury may find."

The Judge charged the jury as follows:

"1. Murder is where a person of sound mind and discretion unlawfully killeth 
any reasonable creature in being and under the peace of the State with malice 
aforethought, either expressed or implied.

"2. By sound mind and discretion is meant that the one doing the killing must 
have a will, a legal discretion.

"3. There must be an actual killing, not that death should be caused by direct 
violence. It is sufficient if the acts done endanger the life and prove fatal.

"4. Malice is of two kinds, express and implied by law, and malice is a wicked 
intention to do an injury. Express malice is where a party evinces an 
intention to commit a crime. Implied malice is where a person commits an act 
unaccompanied with any circumstances justifying its commission. The law 
presumes that he acted advisedly and intended the consequences produced by his 
act.

"5. The defendant is presumed to be innocent until the contrary is proved 
beyond a reasonable doubt; so that your inquiry is, first, is Jenks Macobson 
dead? Second, if so, was his death produced by the unlawful act of the 
defendant?

"6. Has the State satisfied you that Jenks Macobson is dead? For this the 
State relies upon the evidence of Dr. Ramseur.

"7. Did defendant on night of January 6 shoot Macobson, as alleged, with 
powder and shot, wounding him in the thigh, and did that wound, so inflicted, 
cause the death of Macobson? If so, nothing else appearing, he would be guilty 
of murder.

"8. Defendant denies the shooting. Has the State satisfied you, beyond a 
reasonable doubt, that he did do it? If it has not, it will be your duty to 
acquit. To establish this fact, the State relies upon some circumstantial 
evidence and some confessions, or rather statements, made by defendant.

"9. Circumstantial evidence is inherently not as strong as direct or positive. 
Still, if it excludes from the mind of the jury every reasonable hypothesis 
consistent with innocence, it is your duty to be governed by it.

"10. Did the defendant that night go to the house of Bridges, where Macobson 
was, stand outside with a loaded gun, and when Macobson came out did he shoot 
him in the thigh, inflicting the wound as testified to by Dr. Ramseur and Dr. 
McBrayer, and from that wound did Macobson die? If so, the defendant is guilty 
of murder, and it will be your duty to convict.

"11. Has the State satisfied you that the deceased came to his death from a 
gun shot wound at the hands of defendant? If so, the law presumes the malice 
and the defendant is guilty of murder. If Jenks Macobson did not die of the 
wound, but of something else, then the defendant is not guilty of murder. In 
such case, you can find him guilty of secret assault or of assault with a 
deadly weapon. If the defendant secretly lay in wait for the deceased and shot 
him, but the deceased did not die of the wound, the defendant is guilty of 
secret assault. If the defendant fired at the deceased without malice, express 
or implied, and the deceased did not die of the wound, the defendant is guilty 
of a simple assault with a deadly weapon."

The jury was out about three hours, returned, saying they had not agreed, and 
asked for further instructions. His Honor charged the jury that "if the 
defendant lay in wait for the deceased and shot him and the deceased died of 
the wound, the defendant is guilty of murder. If the defendant simply fired at 
Jenks Macobson and Macobson did not die, defendant is guilty only of simple 
assault. If he died, the defendant is guilty of murder."

The defendant excepts to the fact that the Judge declined to charge the jury 
as requested by the defendant in his prayers for instructions, and also 
because, in the supplementary instructions to the jury, he failed to charge 
them specifically that if another cause than the wound intervened and produced 
the death of the deceased, the defendant would not be guilty of murder.

Verdict of guilty; motion for a new trial overruled, and appeal by defendant.

The Attorney General for the State
George A. Frick (by brief) for defendant

NC Supreme Court Justice Burwell, J. - The exception of the defendant that his 
Honor failed "in the supplementary instructions" to charge the jury "that if 
another cause than the wound intervened and produced the death of the 
deceased, the defendant would not be guilty of murder" is untenable, for the 
reason that, as above stated, there was no evidence of any intervening agency 
which the law would recognize as the cause of the death. (see court case for 
judge's full findings)

No error
Affirmed

Additional Comments:
In the NC Supreme Court September Term 1892

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