State v. . Davis , 87 N.C. 514 ( 1882 )

The first exception taken by the prisoner on the trial was to the ruling of the court in permitting the question to be put to the witness, Dockery, "whether before the murder of the deceased, Church said anything about his and the prisoner's going to James Thompson's."

In this there was no error, for the witness had testified that in a conversation between him and Church and the prisoner, the latter had procured him to go with Church to commit the robbery, and the agreement was then made between them that it should be done by the 10th of June. This was some proof of a common design, and any statement after that, that might be made by Church in furtherance of the common design, is evidence against the prisoner. 3 Russell on Crimes, 280.

The second exception was to the admission of the testimony of Redman in regard to his finding the "cup and needle" of Dockery at the place where the latter had said he left them. We can see no objection to this evidence. The witness Dockery had been permitted to testify without objection in regard to the stealing of the witness Redman's money in a few days after the murder, and in giving an account of the transaction he had stated that he left his cup and needle at the white oak where he and Church had stayed the night before the larceny. The testimony was immaterial, except so far as it served to corroborate the testimony of Dockery, in which respect it is not inadmissible.

The third exception was to the ruling of the court in allowing the witness, Weaver, to testify about the pistol and other articles bought of him by Church on the 20th of June. The objection (523) was properly overruled. If there was anything in it, it came too late, for the witness had stated before the objection was raised, that Church had bought the articles, as testified to by Dockery, in the enumeration of which by him, the "brace and bit" was mentioned. But aside from that, the testimony of Weaver was very pertinent and important; for he testified to the passing to him by Church in payment for the articles purchased, the old rare piece of money of the coinage of 1793, which was identified by Thompson as of the money stolen from him on the day of the murder. Whatever was said or done by Church at the time of passing the coin, made a part of the res gestae and was admissible. The purchase of the brace and bit, and the payment for it and the other articles, was a continuous and contemporaneous transaction, and that constitutes the resgestae Taylor on Ev., Sec. 538.

The fourth exception was to his Honor's ruling in permitting the state solicitor to prove by Mitchell that John Adams, a witness for the defence, had authorized his name to be signed to the memorandum of his taxable property for the years 1880 and 1881. The witness, Adams, was introduced by the prisoner for the purpose of contradicting the statement by Dockery of the fact of the reception, by Adams from Church, on the night after the murder, of a part of the stolen money. The witness denied that he had received any silver money from Church on that night, as testified to by Dockery. And on the cross-examination he was asked by the solicitor, where he got certain old Spanish and Mexican silver dollars he had passed to certain persons since the murder of the deceased. The witness answered he had some of this silver money before the war. The solicitor then exhibited to him his lists of taxables for the said years, and asked him if he signed them. He answered that he did not and did not (524) know that he authorized any one to sign them.

It was important for the state to contradict the witness (Adams); for Dockery, the state's witness, had been corroborated in every material particular of his testimony, and if Adams' testimony had been permitted to pass uncontradicted, it would have left Dockery obnoxious to the charge of "falsum in uno, falsum in omnibus."

But it is insisted by the prisoner's counsel, that the question propounded to Adams in regard to his having old Spanish and Mexican dollars in his possession, since the murder of the deceased, was as to an irrelevant or collateral matter, and the state concluded by the answer of the witness, and should not have been allowed to go into evidence aliunde in order to contradict the witness. As a general rule this is true. But there is an exception, where the question put to the witness on cross-examination tends to elicit testimony which directly connects himwith the cause or the parties. State v. Patterson, 24 N.C. 346; Taylor on Ev., Sec. 1298. Another exception is, where the cross-examination is as to matters, which although collateral tend to show the motive, temper, disposition, conduct or interest of the witness towards the cause or parties. Ib. And we cannot conceive of a stronger motive to swear falsely than that which operated upon the mind of the witness, Adams, for if Dockery was to be believed, he was not only guilty of receiving stolen goods knowing them to be stolen, but was an accessory after the fact to the murder of the deceased.

The next exception was to the refusal of his Honor to give the special instructions asked by the prisoner's counsel — "That if the prisoner procured Dockery to go and assist in robbing James Thompson, and after they had completed the work for which he had been hired, and had left and gone some distance away, and then Church returned and murdered the deceased contrary to the (525) wishes of Dockery, the jury cannot convict the prisoner."

His Honor committed no error in declining to give the instruction, or in the charge which he gave the jury. He instructed them that if they believed Church after the robbery left the house twenty or twenty five yards, and returned and murdered the deceased through his own malice and not to conceal the robbery, the prisoner, though they should believe he procured Church to commit the robbery, would not be guilty as accessory to the murder. But if they believed that the prisoner procured Church to commit the robbery, and that Church murdered the deceased to conceal the robbery, then the jury should find the prisoner guilty as accessory to the murder.

The charge is fully sustained by the authorities. In Foster's Crown Law, 370, the principle is laid down, "that if A adviseth B to rob C, and he doth rob him; and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, he killeth him, A is accessory to the murder." See also Roscoe's Crim. Ev., pp. 170, 171.

After the return of the verdict, the prisoner's counsel moved to arrest the judgment, on an alleged defect in the bill of indictment. The counsel contended, or rather suggested, that the bill was defective because the prisoner, indicted as accessory for a substantive felony, ought not to be joined in the bill with the principal. But the bill is in the usual form of an indictment for a substantive felony. In such indictments, it is essential to aver the guilt of the principal, and that was all that was intended to be done in this bill.

There is no error. Let this be certified, etc.

No error. Affirmed.

Cited: S. v. Mills, 91 N.C. 598; Kramer v. Light Co., 95 N.C. 279;Burnett v. R.R., 120 N.C. 519; S. v. Jordan, 207 N.C. 461; S. v. Carden,209 N.C. 413; S. v. Triplett, 211 N.C. 107; S. v. Spaulding, 216 N.C. 540;S. v. Hart, 239 N.C. 712.

(526)