(105 S.E.) 3. Homicide 158 (3)-Declaration of accused defendant was found guilty of manslaughabout using gun in making arrests held admis- ter, and appealed. sible to show intent. In a prosecution of an officer for the killing of a man whom he was attempting to arrest, a declaration by accused, some weeks before the homicide, that he would shoot, and not take any chances himself, was admissible as tending to show the intention of accused. 4. Witnesses 274(2)-Cross-examination of character witness as to his knowledge of decedent's arrest held Improper. A witness, who had testified to the good character of deceased, can be cross-examined as to his general character, but not as to particular matters; so that it was not error to exclude a cross-question whether witness knew how many men it took to arrest deceased on a certain occasion. J. N. Moody, of Murphy, and Felix E. Alley, of Waynesville, for appellant. The Attorney General and Frank Nash, Asst. Atty. Gen., for the State. CLARK, C. J. [1] Exceptions 1 and 2 were to the exclusion of threats made by the deceased against the officers, Cooper and Canup. The judge excluded the evidence of these threats, because not communicated to Canup. In State v. Blackwell, 162 N. C. 672, 78 S. E. 316, it is said: of the deceased is not relevant to the issue in "As a general rule, evidence of the character a trial for homicide, and consequently it is not permissible to show his general reputation as a Appeal from Superior Court, Cherokee dangerous or violent man; but when there is County; Webb, Judge. evidence showing, or tending to show, that the prisoner acted in self-defense, under a reason A. D. Canup was convicted of manslaughable apprehension that his life was in danger, ter, and he appeals. No error. or that he was in danger of great bodily harm, The defendant and John H. Cooper were violent and dangerous man is admissible, providevidence of the character of the deceased as a tried for murder of Dan Sprinkle. The solic-ed the prisoner, at the time of the homicide, itor, at the beginning of the trial, announc- knew of such character, or the nature of the ed that he would not ask for a verdict of transaction is in doubt." murder in the first degree, and at the close of the testimony for the state took a nol. pros. as to Cooper. was Canup was a policeman in the town of Andrews. The deceased (Sprinkle) drinking that night, and was boisterous and profane in the presence of Cooper, who was also a policeman, and the defendant. They attempted to arrest Sprinkle, who resisted. With the aid of the witness, Will Cook, and а man named McAfee, they got him down and put handcuffs on one arm. He begged to go home, and said he would come back and pay his fine. Cooper said: "Let him up." The deceased got up, knife in hand, making two licks at Cook with his knife. He then started for Cooper, who, backing, said: "Dan, I hate to kill you; but I am going to do it, if you don't stop”—and fired his pistol into the ground. At this juncture the wife of the deceased ran up and got between Sprinkle and Cooper, whose connection with the matter there ended. Will Cook testified: "Sprinkle wasn't doing anything when Canup fired his first shot. He was standing with his back to us. Me and Canup were behind Sprinkle. I was about as close to Sprinkle as the table. The first shot hit him in the back. It staggered Sprinkle, and he turned around and went to fighting like Canup, and then Canup kept shooting. I didn't see Sprinkle do anything up to the time Canup shot him in the back the first time. I was standing there all the time. I said to Canup, 'Don't shoot him! Don't shoot ■ drunk man! Knock him down and put the handcuffs on Lim!'" The shot that killed Sprinkle entered his back and came out at his collar bone. The The same rule applies to threats. State v. Hines, 179 N. C. 758, 103 S. E. 374, and cases there cited. Moreover, in this case, according to the evidence, the deceased was not fighting when Canup, from behind, fired the first shot, which caused the death of the deceased. The doctrine as laid down in State v. Turpin, 77 N. C. 473, 24 Am. Rep. 455, and in State v. Baldwin, 155 N. C. 494, 71 S. E. 212, Ann. Cas. 1912A, 479, stating the cases in which the proof of uncommunicated threats are permissible, does not apply in this case; for there were no other threats, which had been communicated, which this testimony would have tended to corroborate. The evidence of the transactions was not circumstantial, but direct, and the character of the transaction was not in doubt. [2] Exception No. 3. It was not error to exclude evidence that the deceased was in the habit of drinking. The evidence was uncontradicted that he was drunk, boister ous, and profane that night. [3] Exception No. 4. It was not error to admit the declaration of the defendant, made some weeks before the homicide, as to his general attitude in regard to shooting, while on the police force; that "he would go ahead, and the first thing he would do he would shoot somebody and learn them how it was." He said he would not take any chances himself. The jury was entitled to this evidence, as showing that the defendant intended to be quick in using a deadly weapon in making arrests. [4] Exception No. 5. The witnesses for the state testified that the character of the | The tobacco is weighed at the warehouse, packdeceased was good. The defense asked this witness "Do you know how many men it took to arrest him at Sylva when he was drunk?" This question was properly excluded. It was competent in cross-examination to ask questions tending to impeach general character, but not as to particular matters as this would raise innumerable collateral issues. State v. Holly, 155 N. C. 485, 71 S. E. 450, and citations thereto in Anno. Ed. ed off the wagon into baskets, put on the truck, then scales, then on the floor. It is weighed, and the number of pounds and the price put on it. We would buy these piles, paying so the weight. The tobacco was moved to the facmuch a pound. Each pile has a tag showing tory after the purchase. The receiving clerk checked the weight of the tobacco when it reached the factory with the weight as shown by the bill on the warehouse floor. I discovered shortage between the weight on the warehouse floor and the weight after it reached the factory, in the fall of 1919. It had been going on all last fall. Q. I will limit it to the time charged. Did you discover that in November? (To the foregoing question and answer thereto the defendants object. Objection overruled. Defendants except. Exception No. 1.) A. Yes, sir; there were shortages in November. There was a sale of tobacco made by Rob Ruffin at the warehouse preceeding the issue of the warrant, and date that I learned of it. I went down and got the check. That was the Q. Do you remember the amount of that? (To the foregoing question and answer thereto the defendants object. Objection overruled. Defendants except. Exception No. 2.) A. I think the amount was $69. I had a conversation with Clifton Brown, one of the defendants. I asked him to tell me all about it; how it was being stolen. He included himself in "they." He told me he was guilty. He was talking to me in relation to another case that came up on yesterday, and I think it was a general reference. I don't know that the tobacco you tried two, Clifton Brown and James Carrington, for yesterday, was never sold on the tobacco warehouse floor for anybody. We got that back. Appeal from Superior Court, Durham He said the tobacco that was gotten from the County; Thos. H. Calvert, Judge. factory was sold in the name of Robert Ruffin. (The judge here cautioned the jury that this Clifton Brown, and not or against the other could only be considered as evidence against two defendants.) This was a case tried upon a true bill sent Cross-examination: I am not familiar with before the grand jury at the regular June where James and Will Carrington worked, but term, 1920, for the larceny of tobacco, the I think they worked inside the factory. We property of the Imperial Tobacco Company.used our truck for hauling tobacco, and someThe following evidence was introduced by the time we rented a truck. The truck usually has state: W. M. Fallon: four or five men on it. I do not know whether the tobacco was weighed correctly at the warehouse or not. I told Clift before the trial, “If you will tell all you know about it, it won't go so hard with you." Then he acknowledged he was guilty. I had Levy Day up on that statement, and Stanley too. The case in reference to this tobacco was never heard be Walter Izard, witness for the state, testified as follows: Direct examination: I was branch manager of the Imperial Tobacco Company in Durham during 1919. I held that position 18 years. I know the defendants now. They did work for the Imperial Tobacco Company. I don't know exactly what Will Carrington was doing. Ifore the recorder. think Clifton Brown was on the dray. I think some of them worked on the warehouse floor where the tobacco was purchased. Sometimes they switch them about, sometimes in the warehouse floor, sometimes on dray. The Imperial Tobacco Company bought tobacco at all of the warehouses in Durham. The tobacco was brought there on a truck, and received by the receiving clerk and stored away to be worked later. It was unloaded, weighed, received, and booked. Sometimes Will Carrington and Clifton Brown were operating the truck. They said James Carrington worked on the dryer. I was working for the Imperial Tobacco Company in the fall of November, 1919. I know the three defendants. In November, 1919, James was working in the house, and Will and Clifton worked on the warehouse floor, getting in the sale tobacco and bringing it to the factory. Will Carrington and Clifton Brown started to work in September, I think on the warehouse floor. I knew there was some shortages in November. (105 S.E.) Cross-examination: The Imperial Tobacco | C. C. Chandler, witness for the state, and Company bought about 4,000,000 pounds of to- testifies as follows: bacco in Durham last season. We bought from four warehouses. We had several trucks hauling with tobacco. November is a right-large sale month. I am a police officer, and have been about 11 years. I went with Chief to Monaston, Pa., for these three defendants. They were brought back. I know Will Carrington. I had Robert Ruffin, witness for the state, testi- a conversation with him on the way back while fied as follows: I have been living on Dowd street for about 15 years. Will Carrington came to me the first time and ask me didn't I want to make $15. He brought the tobacco to my house, and I took it up town, and he put it on the warehouse floor. Will brought the tobacco to my house between 7 and 8 o'clock at night. I sold the tobacco in my name. Will, Clifton, and James came the next time together. They said they had a little tobacco. They brought the tobacco there. I brought it up town and sold it. I gave the money to them. It brought about $300. All three of defendants were present telling me what they wanted to do. They went with me by the bank where I got the money, and I paid it to them near the hook and ladder fire house. Will brought some tobacco by himself one time. I sold it. It brought about $60 or $70. I gave the money to Mr. Beavers. There were three sales made in my name. The last sale was near Thanksgiving. All three of them were there three or four weeks before. The second followed the first very closely. The day they brought the first amount they said they were going to tip me, and all together I got about $40. They told me they picked the tobacco up falling around the warehouse and in hauling. I sold the tobacco at the Planters' Warehouse. I gave the tobacco bills to the boys. Clift and James were arrested first after that. Clift and James were tried in the recorder's court. Cross-examination: I am farming. I farmed last year. I was arrested in Franklin county. After I was arrested last fall, they told me I was excused. James brought the tobacco the first time. I said Will brought it there the first time; yes, one is black and one is yellow. James brought it first. I did say Will brought it first. Will did bring the first tobacco. The light-colored one brought it there first, James; he is the one. All three came the next time. I sold the tobacco in my name. No, sir; I cannot write, and I did not change the date of the bill from November 26th to November 4th. I did not change November 6th to November 10th. I am settled on it that James brought the first tobacco. I do not know exactly the month of the year the tobacco was brought next time. I sold it just before Thanksgiving. James Carrington and Clifton Brown were arrested in another case last fall. This charge was not brought against them until some time this spring. I know that. I never talked to a living soul about this case until I went on the witness stand. All three of defendants came to my house with the tobacco in a one-horse wagon in the early part of the night. I was shucking corn. Redirect examination: I have never been up in my life except about this same tobacco. Indictment dated November 26, 1919, offered in evidence for purpose of fixing the time he was under arrest. I held out no inducement to him, offered no reward, made no promises, nor used any threats. He asked me what the charge was against him, and I told him it was larceny of tobacco from the Imperial Tobacco Company, and he asked me who was witness against him. I told him I thought Bob Ruffin. He said, "We are not the only three that are in it." I do not remember exactly all that he said. The others were sitting there on three seats. I was behind them. We had a warrant in the police office for him. The arrest was made last month, I think. I can't say that the other defendants heard what Will Carrington said. (The judge here cautioned the jury that this could be evidence only against Will Carrington and not against the others.) Cross-examination: A lot of fellows were accused of taking tobacco down there. There had been no warrant issued for Will Carrington when he left here. G. W. Proctor, witness for the state, testified as follows: I am chief of police, and have been for some time. We found the defendants in Monaston, Pa. I brought them back. I heard the defendants make a statement. I made no threats or offers, or held out any hope of less punishment. They said there were others in it except them. Will Carrington said that. Clifton Brown made practically the same statement. I do not think I heard James Carrington make any statement. There was nothing to hinder James from hearing them make the statements. He was sitting right with them. Cross-examination: There were others arrested in connection with tobacco matters down there. We had Clifton and James handcuffed together. Will was sitting along with us. Will Carrington was not arrested last fall. James and Will were under bond in another case. Will never arrested until he went to Pennsylvania. There was a warrant issued for him and James Carrington and Levy Day. At the conclusion of the evidence there was a motion for judgment of nonsuit, which was overruled, and the defendants excepted. There was a verdict of guilty, and an appeal from the judgment pronounced thereon to the Supreme Court. Brawley & Gantt, of Durham, for appellants. James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State. PER CURIAM. [1] We have examined the evidence carefully, and are of opinion that it is ample to sustain the verdict. [2] The evidence of the witness Fallon, which was objected to, was clearly competent as tending to prove the loss of the tobacco. 819(6) 3. Municipal corporations Evidence held to show notice of defective water meter box. In an action for injuries to a pedestrian, who stepped into a defective water meter box. located in the sidewalk, where it was admitted that the city had the duty of maintaining both the box and the walk, evidence that the box was in a defective condition for six or eight months before the injury, and that an employee of the city read the meter monthly, the last time five days before the injury, is sufficient to show notice of the defective condition. 4. Municipal corporations 819(1) Evidence held to show water meter box created defect in sidewalk. In an action for injuries to a pedestrian, who stepped into a water meter box, evidence that the cover of the box was several inches below the surface, and that the depression was filled with leaves and grass, so that it could not be seen, held sufficient to support a verdict finding that the condition of the box created a defect in the sidewalk. the top of a water meter box; the top, which had been displaced, or partially removed, flew up, and her leg went into the box, causing the injury. Black street, where the injury occurred, is a graded, but unpaved, street. The plaintiff lived on the south side, and she had crossed over on the north side, of the street. There was no paved sidewalk; the entire street, including the portion used as a sidewalk, being of a loamy clay soil. The street ran east and west, and the street inclined considerably down grade towards the west to the depot, to which point the plaintiff was running when injured. It is alleged in the complaint and admitted in the answer: "That at the point where water connections are made on Black street by the defendant, that said meters were constructed by sinking a terra cotta 12-inch pipe down into the ground over the meter, and placing a flat iron cap, fitting over the top of the pipe, and in the opening in the iron cap is fitted into a groove an iron lid, somewhat like a stove lid and eye." The defendant moved for judgment of nonsuit, which was refused, and defendant excepted. There is also an exception to the admission of evidence, which is referred to in the opinion. There was a verdict and judgment for the plaintiff, and the defendant appealed. George Pennell and Marcus Erwin, both of Asheville, for appellant. W. P. Brown and J. D. Murphy, both of Asheville, for appellee. ALLEN, J. We have been much impressed by the earnest argument of counsel for the defendant, but upon careful consideration of the record we find no error which would justify a new trial. [1] Two exceptions are relied on. The first is to the reception of evidence showing that of the water meter box after the plaintiff was the defendant made changes in the condition injured, which would have been erroneous under the authority of Lowe v. Elliott, 109 N. C. 581, 14 S. E. 51, Myers v. Lumber Appeal from Superior Court, Buncombe Co., 129 N. C. 252, 39 S. E. 960, and Aiken County; Long, Judge. Action by Maggie Bailey against the City of Asheville for personal injury. Judgment for plaintiff, and defendant appeals. No er ror. This is an action to recover damages for personal injury. The negligence complained of is that the defendant placed a water meter box on one of its sidewalks two or three inches below the surface, with an insecure covering, and permitted dirt and leaves to accumulate thereon. On the 27th day of October, 1917, the plaintiff, while running down Black street, in said city, stepped on v. Manufacturing Co., 146 N. C. 324, 59 S. E. 696, cases relied on by the defendant, if the of negligence; but this was not done, and, evidence had been admitted on the question on the contrary, the court carefully restricted the evidence to the identification of the box and place of injury, for which purpose it was competent. When the evidence was offered and objected to, the court said: "The rule would be this: If you offer evidence tending to show that the meter box was at a certain place, and that place is disputed, you can offer evidence to identify the particular place. Of course, its condition at a subsequent time could not be used as a cause of ac (105 S.E.) tion either. Only the condition of the place at | down as to the time required, and it is usually the time of the alleged injury would be compe- a question for the jury on the facts and circumtent; but, as to the identification of the place stances of each particular case, giving proper in evidence, that you may offer. I will let her consideration to the character of the structure, go on and state whether or not there was a hole its material, the time it has been in existence there, only for the purpose of identity. The and use, the nature of the defect, its placing.' court rules that the cause of action is founded and other considerations not necessary to be upon the conditions existing at the time al- stated." leged in the complaint; then the plaintiff's action must stand or fall by conditions that existed at that time. But as to the contest between the plaintiff and defendant, as to whether or not there was a meter hole at the place at the time alleged in the complaint, the evidence as to subsequent conditions is admitted for the purpose only--that is, whether there was in existence, at the time of the alleged injury, such a meter box or place as that described in the complaint. This evidence is only for identification of such place, and the jury are instructed that it is admitted for no other purpose." The other exception is to the refusal to nonsuit the plaintiff upon the ground that there is no evidence of negligence. [2] The duty of the municipal corporation Is there evidence that the defendant failed to perform this duty? The meter box was placed on the sidewalk, and, as stated in the brief of appellant, the "defendant admitted control and duty to maintain both the meter box and the street." notice to the defendant of the condition of [3, 4] The evidence of express and implied the box was plenary, as one witness testified that the box had been in the same condition as when the plaintiff was injured, six or eight months, and an employee of defendant read the meter monthly, the last time being five days before the injury. There was also evidence that the box was so placed that it made the sidewalk unsafe and dangerous. One witness testified as follows: "Now, tell the jury, if you please, the condition of that hole with reference to the surface of the sidewalk? A. It was somewhat lower, three or four inches lower, I should say, and was hardly discernible. I walked over it, and didn't see it until it was pointed out to me. Q. Why was it that you couldn't see it? A. On account of grass that had grown up about the sides of it, and probably there were leaves over it." There was other evidence tending to prove that the box was two or three inches lower than the general surface of the sidewalk, that grass had grown around it, that dirt and leaves covered it, or nearly so, and that the covering of the box was insecurely fastened, which was sufficient to support the verdict. No error. in reference to streets is stated as follows in Bailey v. Winston, 157 N. C. 259, 72 S. E. 966: "A city or town or village must keep its streets in good condition and repair, so that they will be safe for the use of its inhabitants, or of those entitled and having occasion to use them. If they become unfit for use by reason of defects, which could not be anticipated, and consequently guarded against, under ordinary circumstances, the municipality should have some notice of the defect, either actual or else implied from the circumstances; and in this connection it must be said that it is the duty of the city (and, of course, these principles apply generally to all forms of municipalities) to exercise a reasonable and continuing supervision over its streets, in order that it may know they are kept in a safe and sound condition for use. Sometimes notice of their defective condition is actual or express; again it is constructive or implied, where, for instance, the defect has existed for such a length of time as to show that the city has omitted or neglected its plain duty of supervision; and still again it may be inferred by the jury from the facts in evidence. This principle is illustrated and was applied in Fitzgerald v. Concord, supra, where it is said, approving 1 Sh. & Red. on Negligence, § 369: "Unless some (Supreme Court of North Carolina. Dec., 24 statute requires it, actual notice is not a necessary condition of corporate liability for the defect which caused the injury. Under its duty 174-Unregistered mortgage of active vigilance, a municipal corporation is not effective against subsequent purchaser. bound to know the condition of its highways, As against subsequent purchasers for value, and for practical purposes the opportunity of an unregistered mortgage has no validity either knowing must stand for actual knowledge. to pass the title or to create a lien. Hence, when observable defects in a highway have existed for a time so long that they ought 2. Mortgages to have been seen, notice of them is implied, and is imputed to those whose duty it is to re- The execution of a mortgage by an officia) pair them; in other words, they are presumed in lieu of an official bond as permitted by Reto have been discovered by the exercise of rea- visal 1905, § 265, is an exceptional procedure, sonable diligence." * ** On the question of and the statutory provisions must be strictly notice implied from the continued existence of observed, and the instrument so executed is a defect, no definite or fixed rule can be laid still a mortgage which must be legally registered (180 N. C. 651) HOOPER v. TALLASSEE POWER CO. (No. 591.) 1. Mortgages 1920.) 174-Mortgage given in lieu of official bond must be registered. |