State v. . Collins , 14 N.C. 117 ( 1831 )

On the trial evidence was offered by the defendant that the prosecutor was actuated by malicious motives in preferring the prosecution, but his Honor rejected the testimony, because it was irrelevant, as the prosecutor was not offered or examined as a witness in support of (118) the prosecution.

In arguing to the jury, the defendant's counsel insisted that if the evidence was not of weight sufficient to induce them to find a verdict against the most respectable man of their acquaintance (and the counsel designated a very respectable gentleman known to all the jury, and then in the courthouse), they would not, in law, be justified in finding a verdict upon the same testimony against the defendant.

In summing up, his Honor informed the jury that the case supposed by the defendant's counsel might mislead them. That the defendant not having introduced evidence of his character, the true rule was, that if the evidence would not justify them in returning a verdict against a person of whom they had never before heard, and of whom they knew nothing but what was disclosed by the testimony, then it would not justify a verdict against the defendant. But it did not follow that if they thought the evidence insufficient against a gentleman who brought with him the weight of character they might attach to the very respectable individual designated by the counsel, that it was insufficient against the defendant.

The jury returned a verdict of guilty, and the defendant obtained a rule for a new trial, because the judge rejected the testimony offered by the defendant, and because of error in his instruction to the jury. The rule was discharged. Upon inspecting the transcript of the record of Jones Court, it was found defective in the following particulars:

1. It stated the Superior Court of Jones to have commenced on Wednesday, the ........day of March, 1828.

2. O. B. Coxe appeared upon the transcript to have been appointed foreman of the grand jury, but his endorsement on the bill was signed O. W. B. Coxe.

3. The entry of the order of the removal to Lenoir was made in these words: "Sent to Lenoir."

4. The certificate of the clerk of Jones Court stated it to be a (119) cause in which R. K. is prosecutor, and Benjamin Collins, defendant.

For these causes, his Honor declined passing sentence, but directed a writ of certiorari to issue to the clerk of the Superior Court of Jones, "ordering him to certify a more full and perfect transcript of the record of the cause in his office."

The record certified to this Court stated, that "in obedience to thecertiorari, issued in pursuance of the order of the preceding term, the clerk of the superior Court of Law of Jones County returned here into court the following transcript." This transcript corrected the defects above specified as existing in the one first certified, as is stated by his Honor, the Chief Justice, in pronouncing the judgment of this Court.

Upon the return of this writ, his Honor, Strange, J., passed sentence on the prisoner, who appealed.

Neither the writ of certiorari nor the return on it were incorporated in the record transmitted to this Court. It is objected, first, that the Superior Court of Lenoir could not issue a certiorari to the Superior Court of Jones to certify to the former a record of the latter court, because they are courts of coordinate powers; that such writ, from its nature, can only issue from a superior to an inferior court. It is true that this is the practical application of the power to issue the writ in most cases, because mostcommonly the records of an inferior court are required in the Superior Court, for purposes pointed out by law; the latter court having the power of examining and reviewing the proceedings of the inferior court, by way of appeal or writ of error. But the power to issue the (120) writ does not grow out of the superior grade of the court issuing it, but is based on the principle that such power is necessary and proper to carry into execution the legitimate power and duties of the court. The court of Lenoir being authorized to act upon the records of Jones Court, transmitted to it by that court, where no record, or an imperfect one, is transmitted, the power of obtaining the record grows out of the power and duty to act upon it. And we know of no way more convenient and proper than a certiorari. It cannot be by way of request, for then the jurisdiction might be defeated by a refusal. It must be by way of mandate; and if legal, it is the mandate of the law, and must be obeyed. If the record certified was in contradiction to the one on file, the court could act on neither, for each had equal authority. It could not be ascertained which was correct. This point occurred in the case of S. v. Curry. In that case, by order of the court to which the cause had been transferred for trial, the clerk of the court from which it was sent attended with the record itself, and the record transmitted was made conformable to it. This Court, after great deliberation, argument, and examination of precedents, affirmed the proceedings. If the records are not contradictory, but the one only more full than the other, explaining absurdities and contradictions, and filing blanks, they may be proceeded on. And, in fact, they both form but one copy. Such we think is the case in the present instance.

The first objection to the record is, that there is a blank in stating the time when Jones Superior Court was held. It is stated to be on Wednesday, the ..... day of March, 1828. This blank is filled in (what may be called for distinction) the certified copy. We say nothing on the point, whether there was anything in it.

The second is, that in stating the names of the grand jurors upon the record, O. B. Coxe is stated to be foreman. And in his, the foreman's endorsement, he styles himself O. W. B. Coxe. This is amended on the certified record. In that it appears from the record of the appointment of the grand jurors that Owen B. Coxe is appointed foreman; and the indictment is endorsed "a true bill — O. B. Coxe, foreman." (121) This variance cannot in such case be material, and the court, by receiving and ordering the indictment to be docketed, recognize him as the same person. Indeed, I have been much at a loss to see the necessity of any endorsement. The grand jury come into court, and make their return, which the court records, not from that memorandum made out of court, but they pronounce, or are presumed to pronounce, it in court. It is not the endorsement which is the record, but that which is recorded as the juror's response. The endorsement is a mere minute for making the record. But I believe the law is understood to be otherwise.

The objection that the order of removal is not complete is removed by the certified copy. The clerk sent at first a mere minute of an entry, which I suppose he extended.

The next objection is, that the certiorari was not returned. It certainly would have been more regular to do so, and it must have been returned if it was to give the court jurisdiction. But in this case it does not. The only purpose which it could answer would be to show that the record filed was made out and filed in obedience to the writ; that it was not an officious act, or the act of a stranger. The records of Lenoir show that a certiorari was awarded, and the certified copy shows that it was made out in obedience to that writ. I think that this is sufficient. I omitted noting the objection that the record first sent states the case to be one wherein Reddin Kent is prosecutor and Benjamin Collins is defendant. This is a mere misnomer of the case, which the clerk himself has given to it. He states it at large, showing what it is, to wit, an indictment, which of course is at the instance of the State, and Benjamin Collins defendant. But be it as it may, it is amended by the certified copy.

The grounds for a new trial, I suppose, were abandoned. They were not urged. But if they were, they would not have availed, for the reasons given by the presiding judge.

PER CURIAM. Judgment affirmed.

Cited: S. v. Calhoon, 18 N.C. 376; S. v. Reid, ibid., 383; S. v. Cox,28 N.C. 446; S. v. O'Neal, 29 N.C. 252; S. v. Guilford, 49 N.C. 85;S. v. Blackburn, 80 N.C. 486; S. v. Voight, 90 N.C. 746; S. v.Anderson, 92 N.C. 755; S. v. Hunter, 94 N.C. 834; S. v. McBroom,127 N.C. 530, 536; S. v. Ledford, 133 N.C. 715.

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