State v. . Lipsey ( 1832 )

I shall confine myself to what is called the fifth point on the motion for a new trial, which I shall take from the judge's response to the motion, and not from the allegation of the counsel. The judge asserts that the jury were instructed "that the character of the accused was only to be considered where his guilt was doubtful, and was entitled to but little weight where the facts were positively(492) sworn to." Although I am opposed to prescribing rules of faith for the opinions of others, as we know so little of the ground on which our own are formed, that had this been a civil case, I do not know that I should disturb the verdict, as, without a very strained construction, the judge may be understood to have added the latter words as illustrative of the former part of his charge, and it was so understood by the jury. Yet, in a capital case, I cannot act upon bare probabilities, but must give to the words their most natural import, and view the latter part, to wit, the following words: "and was entitled to but little weight where the facts were positively sworn to," as a distinct substantive instruction, which from its phraseology it purports to be. If the judge means by the words positively sworn to, clearly and satisfactorily established, he may be right, for character is thrown into the scale as presumptive evidence only, and if the opposing proofs are strong and clear, carrying conviction with them, in such case it is quite evident that presumptions can make but little impression. But if he meant, as the words import, that the presumption arising from the character can have but little weight where the facts are positively sworn to only; orbecause the facts are positively sworn to, I think he erred, for the facts may be positively sworn and yet not afford such clear and satisfactory evidence of their existence as not to be shaken by presumptive evidence. This may arise from a variety of causes. The character of the deposing witnesses, their means of knowledge, the manner in which they gave in their evidence, the very nature of the fact deposed to, the negative or positive evidence of opposing witnesses to the same or some other transaction referred to, conflicting with it. And, indeed, a great variety of causes may concur to shake the belief of juries in a fact positively sworn to by one or many witnesses. Yet these of themselves may not be sufficient to overthrow the proofs. The weight of positive testimony yet inclines the scale against the prisoner, or to speak more properly, as character is admissible in criminal cases only, the weights in the opposite scale are not sufficient to raise it from the ground, the character is then thrown in to that scale, (493) a rational doubt is raised, and the prisoner therefrom claims an acquittal. Let it not be said that this is an unnatural or an overdrawn picture. The original is of frequent occurrence, and I think I can perceive this case to be of that description. The judge, in his statement, says there was conflicting testimony: on the one side, the testimony of what he calls the main witness, and others, made the homicide to be a case of murder, and some witnesses for the defendant rendered it manslaughter. The peaceable and orderly character, which it was shown the prisoner had ever borne, had, I think, more "than but little weight," particularly as to the provocation, and the circumstances under which the mortal blow was given, for I presume that was the point on which the witnesses differed. Such a character must have considerable influence where there was a doubt whether the blow was given upon little or no provocation, or whether the provocation was great.

These were my views in the case of S. v. Merril, 13 N.C. 269, in which I delivered no opinion, but concurred with Judge Hall in reversing the judgment. In that case the prisoner's bad character ought not to have prejudiced him, as he did not offer his character in evidence, and it washis right to offer it or not. Who can say that it did not affect the verdict, that it did not make out a case otherwise defective on the part of the State, or that the State offered it at least as a make-weight. Could we, who are not permitted to weigh the evidence, say there was sufficient without it? The evidence which convinces the understanding is composed of particles too minute, too subtle, and too fluid to be either counted, weighed, or measured. We have no weights or measures of it even for ourselves, much less have we weights and measures to mete it out to others. The only rule is the quantum sufficit to the understanding of him who is to decide. I then thought, and still think, it was the prisoner's right (unless he waived it) to stand before his jury as(494) an ordinary man, neither above nor below the common level, and he should not, but by his own consent, be placed otherwise, and that the jury only (and perhaps not even they) could say how much each particle of evidence operated, and affirm that the verdict was unaffected by the bad character of the defendant, improperly given in evidence by the State.

On the other parts of the charge I concur with Judge Ruffin, and for the very satisfactory reasons given by him. I think that the judgment should be reversed, and a new trial granted.