State v. . Parker , 61 N.C. 473 ( 1868 )

The deceased (one William Childress) was killed on Sunday night, 29 March, 1863, and his body was found shortly afterwards in Smith's Creek, about one mile from Wilmington. On the side of the creek, a few feet off, a large quantity of blood was found, and there were marks of a scuffle. Some twenty wounds were upon the body, two of which had been inflicted by a large knife, and were sufficient to produce immediate death. On the day before, the deceased was wearing a gold watch, which was described, and a considerable amount of Confederate and also of United States currency. He was a subject of Great Britain and had about him a "British protection paper" against conscription. On (474) Sunday afternoon he was at a house in Wilmington, the last towards Smith's creek, occupied by some women, and the prisoner and two other men (Dunn and Runciman) were with him. After frequent invitations by the prisoner and Runciman, the deceased at last about dark consented to take a walk with them, and they went off in the direction of Smith's creek. Deceased then had on the watch, and prisoner had a large bowie knife. About midnight the prisoner and Runciman returned and asked for water, which Dunn went out and gave them, and then they went off, returning again about light with a number of dead chickens, some of them with their heads taken off, the men's clothes having much blood upon them, which they tried to scrape off, saying it was from the chickens.

On Monday the prisoner and Runciman were in a store together under false names, offering to sell a gold watch, and exhibiting Confederate and United States currency, also a "British protection paper," which prisoner said would prevent him from being "conscripted"; and on the same or the next day Runciman having been wounded in an affray was arrested and the "paper" was found upon him, and he afterwards gave some currency (as above) to a friend. On Sunday night about 11:30 o'clock, the prisoner and Runciman were at a shop standing by the fire, and prisoner had a watch, which a witness believed was the same exhibited by the deceased on the day before; and this caused that witness to take steps to have the prisoner arrested. On Tuesday succeeding, the prisoner when in jail had a large bowie knife which he said belonged to him, and two physicians testified that there was blood on the handle and blade, and one physician said that in his opinion it was human blood; and the blade being applied to one of the mortal wounds upon the body of the deceased fitted in it. On the same occasion, the sheriff opened the breast of the prisoner's coat, and his (475) clothing beneath was found stained with blood. When asked about this, the prisoner said nothing. At the same time another prisoner produced a watch (identified as that of the deceased) and said that the prisoner gave it to him to keep. This the prisoner denied, but afterwards in same conversation admitted that the watch was his, and that he had brought it from Virginia; and said that he had denied it at first because some one had been there a little before to inquire about it.

The counsel for the prisoner requested the court to charge the jury that if any reasonable hypothesis could be made out consistent with the prisoner's innocence, they must acquit; and that a presumption could be raised only from a fact, and not from another presumption; that having topresume the prisoner's presence at the murder from the fact that he was seen going in that direction with the deceased, they could not also presume from this presumption, that he was the murderer or was present aiding and abetting.

The court reviewed the evidence at length, and upon one part of the case charged the jury "that there were no nice distinctions of law to be drawn or explained in this case, as between the different degrees of homicide, because the prisoner denied the homicide, and there was no evidence to rebut the presumption that whoever committed it was guilty of murder; that there was no half-way ground on which they could compromise, and they must either convict of murder or acquit; that they must be convinced beyond a reasonable doubt that the prisoner was present and committed homicide or aided and abetted it, before they could convict him; that the presumption of his mere presence was not sufficient for conviction, but that if the jury believed that he was present and that a robbery accompanied the homicide, and the prisoner soon afterwards was found in the possession of valuable property which was the subject of the robbery, and that the prisoner had given no reasonable or satisfactory explanation of the manner in which he (476) came into the possession of the property, and that the evidence in the case furnished no explanation of the manner in which he came into possession of the property consistent with his innocence, that then they ought to convict him."

After the charge had been closed the counsel for the prisoner requested the judge to instruct the jury in the language used in the case of S. v.Swink, 2 D. B., 9: "That in cases of circumstantial testimony the evidence must be as strong and clear as if derived from the evidence of one credible and respectable witness." The court said that it adopted the decision in that case, but that it meant no more than that they should be convinced beyond a reasonable doubt, as they had already been told.

Verdict, "Guilty." Rule for new trial discharged. Judgment and appeal. This was a case of circumstantial evidence. His Honor left it to the jury to say whether from all of the facts and circumstances, they were satisfied by the evidence that the prisoner inflicted a mortal wound, or was present aiding and abetting the act. There certainly was evidence tending to prove the guilty of the prisoner, and we think he has no right to complain of the manner in which his Honor put the case to the jury.

If the prisoner inflicted the mortal wound, or was present aiding and abetting the act, the idea of manslaughter, or of excusable or justifiable homicide, was out of the question. It was either a case of cold blooded murder, for the sake of getting the property and money of the deceased, or else the prisoner was entitled to a verdict of (477) acquittal, because no offense had been proved.

The instruction asked for in regard to a "reasonable hypothesis consistent with the innocence of the prisoner," and "that a presumption could only be raised from a fact, and not from a presumption; and, that having to presume the prisoner's presence at the murder from the fact of his going in that direction in company with the deceased, the jury had no right to presume from this presumption that he was the murderer or present aiding and abetting," was, in our opinion, fully responded to by his Honor's charge. The fact of "the prisoner's going in that direction in company with the deceased," was not the only fact from which his presence at the murder, and his participation in the crime could be presumed. There were many other facts bearing upon the matter; and the prisoner's counsel was not at liberty to ask for an instruction predicted on the ground that there was no other fact in evidence, and thereby isolate the point.

We think the prisoner has no ground of complaint in reference to the refusal of his Honor to adopt the very words used in Swink's case without explanation. The truth is that no set of words is required by law, in regard to the force of circumstantial evidence. All that the law requires is, that the jury shall be clearly instructed that, unless after due consideration of all the evidence, they are "fully satisfied," or "entirely convinced," or "satisfied beyond a reasonable doubt" of the guilt of the prisoner, it is their duty to acquit, and every attempt on the part of the courts to lay down a "formula" for the instruction of the jury, by which to "gauge" the degree of conviction, has resulted in no good. S. v. Sears,ante, 146; S. v. Knox, ante, 312.

"The evidence must be as strong to authorize conviction, as if proved by one credible and respectable witness." What degree of certainty (478) is fixed by this proposition? It, of course, must depend upon the attendant circumstances. These differ in every case and never rest upon the testimony of a single witness; e. g., the connection of the parties, were they strangers, friends or enemies; the motive for the act; the conduct of the prisoner after the act; attempts at concealment; telling lies, etc. So the proposition, although it may sometimes serve the purpose of illustration, is not, and cannot be made a rule of law; consequently it is not error to decline to instruct the jury in these very words.

On the contrary, when the presiding judge thinks from the course of the argument, and the signification given to the words by counsel, that, to use the very words would tend to give the jury a wrong impression as to what the law requires, it is his duty to use other words, or, if he adopt the very words, to do so with such an explanation as will convey to the minds of the jury a counter impression, and prevent misapprehension, as was done by his Honor in this case.

Many things occur at the trial below, which it is impossible to communicate to this Court. Such things cannot be reviewed and must be left to the judgment and good sense of the judge who conducts the trial. This Court can only interfere when error appears. There is no error. This will be certified, etc.

PER CURIAM. There is no error.

Cited: S. v. Gee, 92 N.C. 761; S. v. Debnam, 98 N.C. 718; S. v.Brabham, 108 N.C. 797; S. v. Rogers, 119 N.C. 796; S. v. Adams,138 N.C. 695; S. v. Neville, 157 N.C. 597; S. v. Charles,161 N.C. 288; S. v. Frady, 172 N.C. 979; S. v. Jones, 182 N.C. 786;S. v. Grier, 184 N.C. 723; S. v. Barnhill, 186 N.C. 450; S. v. Sigmon,190 N.C. 688.

(479)