State v. . Collins , 70 N.C. 241 ( 1874 )

Settle, J.

The prisoners, together iwith one Hood, were -tried at Fall Term, 1873, of the Superior Court for Johnston county, on an indictment charging them with the murder of one Allen Jones.

The jury returned a verdict acquitting Hood and convicting the prisoners. Several points made upon the record were -abandoned upon the argument in this Court.

We will now consider all exceptions which require comment:

It would seem that the prisoner, Collins, joined the State in the prosecution of Hood, and introduced evidence against .Hood, which also implicated Blalock. To this Blalock excepted.

His Honor allowed the j ury to consider the evidence as against Hood, but told them it was not evidence against Bla-lock. There is nothing unusual in this practice. It frequently happens in joint trials that the Judge has to separate the evidence bearing upon the case of each prisoner, and instruct the jury as to what is competent against one and incompetent -against another.

The prisoner Collins excepts,

1st. Because a juror was not rejected by the Court who stated that he “ had formed or expressed ” the opinion that the .prisoner Collins was guilty, but who, on being asked the foundation for his opinion, replied that it was founded upon rumor, and not upon any evidence"; and in answer to a further question, he stated that he could try the case by the law and the evidence, and would not be influenced by any opinion he may have formed from rumor.

We understand from this, that when the juror was tendered he was challenged by the prisoner, Collins, for cause, and the cause assigned was that he had formed and expressed an opinion adverse to the prisoner, Collins, and therefore his Honor, (in the stead of triers,) after an examination of the juror, found him to be indifferent. The Court seems to have followed the practice adopted in the case of State v. Ellington, 7 Ired. 61, and the answers of the juror here are almost identical with those of a juror in that ease.

The principles established in the case of the State v. Ellington, supra, following the case of the State v. Benton, 2 Dev. & Bat. 196, is, that an opinion fully made up and expressed is a good cause of principal challenge as a matter of law; but that one imperfectly formed, or one merely hypothetical, that is, formed on the supposition that the facts are as they haye been represented, does not constitute cause of such a challenge, but of challenge to the favor, which is to be allowed or disallowed as the triers shall find the fact of favor or indiffereney : and that when the Judge becomes satisfied that what the juror calls an opinion, was not such in legal meaning, and that it had left no unfavorable bias on his mind, the challenge should be overruled.

To the very satisfactory reasons given in Ellington’s case for this practice, we will add, that in these days of newspapers, railroads and telegraphic communication, it is exceedingly difficult to find persons of sufficient intelligence to sit on a jury, who have not heard something of almost every capital crime which occurs in the State. And if we disqualify all who have received some impression from such information or rumors, and have casually expressed an opinion as to the guilt or innocence of the accused, we will exclude from the jury box thei best educated, and the most liberal minded portion of the com-' munity. The better informed a juror is-, the more apt will he be to guard against improper influences.

2d. The prisoner, Collins, moved for a separate trial, stating that as he was a white man, and the other prisoners were colored, a severance was necessary to a fair trial. This motion was overruled, and Collins excepted.

Where several persons are jointly indicted they cannot claim separate trials as a matter of right.

Mr. J ustice Stoey says, in United States v. Marchant and Colson, “this is a matter of sound discretion, to be exercised by the Court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence.”

The same doctrine is laid down by the text writers, and is quoted with approbation in this State, State v. Smith, 2 Ired., 402.

3d exception : “ That in the argument of the case the constitutional rights of the prisoner, as declared in Art. 1, see. 11 of the Constitution of North Carolina, were infringed, and in a great measure virtually denied him, inasmuch as only one hour and a half was allowed to him for the argument of his case, he asking for more time when the allotment of time was made by the presiding J udge; a large number of witnesses having been examined on both sides.” In this country every one has a constitutional right in all criminal prosecutions to have counsel for his defence; and if be be too poor to employ counsel, it is the duty of the Court to assign some one to defend him; and it is the duty of the counsel thus assigned to give to the accused the benefit of his best exertions-. It is gratifying to be able to state that the bench and the bar in North Carelina have always dealt mercifully and generously with those who have had the double misfortune to be stricken with poverty and accused of crime.

This, we believe, is the first complaint that has reached the ears of this Court that any one accused of crime has been de-Med the full benefit of counsel for his defence. For although this right has sometimes been abused, yet the Judges, in the exercise of their discretion, have deemed it better to submit to an abuse rather than to have even the appearance of denying a right. We regret that complaint is now heard. And while we feel constrained by the weight of authority and reason to hold that a Judge must have the superintending control of his Court, with power to direct the proceedings of the same, so that the time shall not be wasted in arguments, disputes and contentions, having no tendency to bring about a fair and legal disposition of judicial business, yet we do not recommend the ruling of his Honor in the ease before us as a precedent worthy of general imitation.

In Wood's ease, 7 Leigh, 743, the Court refused t® allow counsel to address either the jury or the Court. Upon appeal this was held to be error.; but the Court say, “ while we thus decide, we are not to be understood as restricting, in any degree, the power of the Court to prevent an abuse of this or any other right by exercising a proper control over the course •of the argument.”

In Commonwealth v. Porter, 10 Met. 263, the Court say, “it is within the legitimate power, and it is the duty of the Court to superintend the course -of the trial; to decide upon the admission and rejection of evidence; to decide upon the nse of any books, papers, documents,- cases or works of supposed authority which may be offered -on either side; to decide upon all collateral and incidental proceedings, and to confine parties and counsel to the matters within the issue.”

In Lynch v. The State, 9 Indiana, 541, it is said, “ the Court has a right to regulate by reasonable rules and limitations the .argument of consel. This is a necessary discretion to be possessed by the Court to prevent abuse.”

The only case we have been able to find, which would seem to be in conflict with these authorities, is The People v. Keenan, 13 California, 581, where the counsel for the prisoner was limited, in hi-s argument, as in our ease, to one hour and & half.

The Supreme’ Court, acting upon “ the affidavits of counsel of respectability and standing, which shows that they were-prevented, by this restriction from a full and fair defence of their client,” granted a new trial, yet in doing so the Court say, “ an enlarged discretion must necessarily be given to a Judge over this subject, and we should certainly with great reluctance disturb the exercise of that discretion in any given case. Nor do we here question the right of a District Judge-to limit the counsel to a reasonable time in their arguments to-thejui’y, though from the danger to which this power is exposed, it is perhaps better, if ever done at all in capital cases,, that it should only be done in very extraordinary and peculiar instances.”

It seems to us that the admission of a discretion in a Judge-lo limit the counsel is at the same time a denial of the right to review the exercise of that discretion.

While Judges, like other men, are liable to make mistakes, yet it is apprehended that the substantial ends of justice will-be better served by giving to them the general supervision of the Courts, than by depriving them of powers necessary for-the protection of the Courts, and the dispatch of business. It is to be presumed that the Judge who sees and hears all the-incidents of a trial is better qualified to exercise a discretion, as to its conduct, than the Justices of the Supreme Court who-have only the limited view afforded by the record. Upon consideration of the whole case we are of opinion that there is no-error.

Pee CueiaM. Judgment affirmed.