State v. . Ussery , 118 N.C. 1177 ( 1896 )

AVERY, J., dissents. The defendant was indicted for murder and convicted of manslaughter. There were numerous exceptions to the admission and exclusion of evidence and to the charge of the court. Several of these were abandoned in this Court, and we note only those which seemed to be relied on.

One of the exceptions relied on in the argument is that his Honor failed to tell the jury whether the stick used was a deadly weapon. This we need not discuss, as the verdict is only for manslaughter, and the prisoner has the benefit of treating the stick as not (1179) being a deadly weapon, because manslaughter may be produced in various ways without the use of such a weapon. Another exception by the prisoner is that the court stopped one of his counsel in his argument when commenting on a state of facts, of which his Honor stated there was no evidence. It would be manifestly improper for counsel to indulge in a line of argument when there is no evidence to support it.

There are frequent occasions on trials below calling for the discretion and sound judgment of the trial judge. When he shall be of opinion that counsel are exceeding and abusing their privileges in any matter, it is his duty to either stop the counsel at once or caution and tell the jury in his charge to disregard the objectionable remarks, and neither course will be error. Greenlee v. Greenlee, 93 N.C. 278; S. v. Hill, 114 N.C. 780, and several cases therein cited. His Honor charged the jury that if they were satisfied "the prisoner reasonably feared the loss of his life or great bodily harm at the hands of the deceased at the time he struck the blow, and that it was necessary for him to strike for the protection of his life or to save himself from serious bodily harm, you should acquit the prisoner." We think this complies with the rule that "he believed it was necessary," etc., insisted on by the defendant, and this disposes of several other exceptions of the same import.

The prisoner's seventh exception is that his Honor, in his charge in relation to murder in the second degree, called attention to the State's evidence and omitted to call attention to the prisoner's evidence on the same subject. This exception seems of no importance, now that the verdict was only for manslaughter; but if the court omits any evidence favorable to the prisoner in his recapitulation and charge, it is the duty of the prisoner's counsel to call it (1180) to the attention of the court, in order that the same may be supplied, and after verdict an exception grounded on such omission will not be sustained. S. v. Grady, 83 N.C. 643.

There are other exceptions to the charge, such as that his Honor did not eliminate the material facts of the case or weigh the state of facts on both sides and apply the principles of law to them; that he did not state in a full and explicit manner the facts given in evidence; that he did not tell them what evidence was substantive, what corroborative, what contradictory, and the purposes for which such kind of evidence might be considered by the jury. On reading the charge, which seems to have been carefully delivered, we are unable to see that the case was presented unfavorably to the prisoner. The judge is not required to recapitulate all the evidence to the jury; it is sufficient for him to direct their attention to the principal questions before them and explain the law applicable thereto. If the prisoner desires the entire testimony or any specific part thereof repeated to the jury, he should make the request in apt time and before verdict. If no such instruction is asked, the failure of the court to repeat will not be a ground for a new trial. S. v. Pritchett, 106 N.C. 667; Boon v. Murphy,108 N.C. 187.

The remaining exceptions refer to the evidence on the question of character and reputation. Reputation is the estimation in which a person is held by others, especially the popular opinion. Some critic has said that character lives in a man — reputation outside of him. In the trial of Thomas Hardy for treason, Mr. Erskine described it in these words: "The slow-spreading influence of opinion arising from the deportment of a man in society. As a man's deportment, good or bad, necessarily produces one circle without another, and so (1181) extends itself till it unites in one general opinion, that general opinion is allowed to be given in evidence." State Trials, p. 1079. This rule of evidence is so manifestly just and reasonable, and appeals so strongly to the common sense of man, that it has never been the law in this country. The rule is that where an impeaching witness is called, he must first qualify himself by answering whether he knows the general reputation of the witness or party whose character is being inquired about. If he says he does not, then he should be stood aside and no cross-examination allowed. If he answers in the affirmative, he can only state the general reputation of the witness or party. On cross-examination, he, for the purpose of testing his knowledge and weakening the force of his first statement, may be examined as to particular traits; then the redirect examination is limited to the particular matter brought out by the cross-examination. Without this limitation, which we gather from numerous decisions, the trial would lead to endless inquiry and would soon lead the jury into great confusion. Then, for the uniform and faithful administration, it is quite necessary that this rule be settled, as it has been long since.

In this case one of the exceptions will be sufficient to settle all the exceptions on this question. J. M. Smith was called by the prisoner and testified that the general character of the prisoner, Ussery, was good. On cross-examination, he stated that the prisoner had submitted on a charge of fornication and adultery. He was then asked by the prisoner's counsel, "What is the general character of Ussery, the prisoner, for truth and honesty?" Objected to by the State and excluded by the court, and the prisoner excepted. It will be seen that the question violates the rule above stated, and that there was no error in excluding the answer. S. v. Perkins, 66 N. (1182) C., 126; S. v. Laxton, 76 N.C. 216.

No error.

Cited: Patterson v. Mills, 121 N.C. 269; S. v. Kinsauls, 126 N.C. 1097;Davis v. Evans, 139 N.C. 442; Whitfield v. Lumber Co., 152 N.C. 214.