State v. . Brewer , 98 N.C. 607 ( 1887 )

After the appeal in this case had been docketed, called regularly for argument and argued, and the court had considered of the errors assigned, two of the appellants presented their application, signed by them respectively and approved by their counsel, asking that they be allowed to withdraw the appeal as to themselves, and their counsel submitted a motion to that effect, which the Attorney-General opposed.

No cause is assigned in support of this motion; it seems to be expected that it will be granted as of course. This is a misapprehension of the rule applicable. The appellants having brought their appeal to this Court, the latter has jurisdiction thereof for all proper purposes, and may, in the exercise of a sound discretion, grant or refuse their motion. The court will ordinarily, with the assent of the Attorney-General, grant such a motion, but it will not when he opposes it, unless just and reasonable cause be shown why it should be allowed. The course of procedure in an action is serious, and must be observed and pursued until it shall be completed, and a party to it cannot abandon or rid himself of important steps taken in it without the consent of the opposing party or for cause shown, and with the sanction of the court. And this is so in criminal as well as civil actions. Courts are serious and practical tribunals that do not tolerate the mere whim or caprice of litigants; a reason or cause should prompt every step in the course of an action. No cause has been shown in support of the present motion, and it must be denied. S. v. Leak,90 N.C. 655; S. v. Lee, 91 N.C. 570.

The single objection taken at the trial to the admission of evidence is not well founded. Obviously one purpose of the cross-examination of the witness Fleming — a witness for the prosecution — was to impeach (616) him as to his testimony. It was therefore competent to corroborate him in that respect by producing evidence that he had, before the trial and his examination, made statements the same in effect, or substantially the same, as he made on his examination in respect to some material matter of fact. S. v. Whitfield, 92 N.C. 831. His testimony tended to prove that the prisoner, Pat Brewer, on trial, discharged the fatal shot; he said that he saw the prisoner just before the firing began, and the latter told him that his name was Pat Brewer; that immediately after the fatal shot he heard a voice from the upper window of the house from which the shots came, which said, "I have got one of the God d____d rascals," or words to that effect. I recognized that voice as the voice of the man who told me his name was Pat Brewer, etc.

The corroborating witness, who examined the body of the deceased just after he was killed, and who then saw the witness sought to be impeached, was asked the question, "What did witness Fleming tell you?" His answer was — the prisoner objecting — "Fleming said he knew that Pat Brewer killed Frieze." This was not a very important fact, but it tended in some degree to corroborate the witness as to the account he gave of the presence of the prisoner Brewer in the house, and what he said he had done just after the fatal shot. The testimony of the witness on the trial went to prove that the prisoner killed the deceased, and his declaration theretofore made that he had done so was corroborative and therefore competent.

We are of opinion that not one of the numerous assignments of error as to the instructions the court gave the jury can be sustained. The appellants' counsel asked the court to instruct the jury that they must "be satisfied beyond all reasonable doubt that the defendants, or some one of them, fired a shot which killed" the deceased. If it be granted that this request was proper, the court gave it in substance (617) repeatedly. In one connection it said, "your first inquiry is, did the prisoner, Pat Brewer, Jesse Harris and Frank Kirby, the appellants, or either of them, inflict a wound with a pistol shot in and upon the breast of Jacob A. Frieze, and that his life was taken by that shot, and the State has proven this to your satisfaction and beyond a reasonable doubt," etc. In another connection it said, "the State must show to you beyond a reasonable doubt that Jacob A. Frieze was killed by a pistol shot, and that the defendants, or some one of them, did the act," etc. The court was not bound to give the instruction asked for in its very words; it was sufficient to give it in substance as it did. Nor was it necessary to give it in the order and connection asked for; it was sufficient to give it fairly, so that the jury could understand and properly apply it, as the court certainly did.

That the court failed to instruct the jury, in a particular connection, that "the killing must be proven to have been done with a deadly weapon," is assigned as error. The evidence went to prove that the deceased was killed by a pistol shot, nor was there any evidence to the contrary. The court told the jury in a proper connection that they must be satisfied beyond a reasonable doubt that the deceased was killed by a pistol shot, and they could not mistake that this was a material part of the inquiry. No question was made on the trial as to the weapons used by the prisoners, and it was sufficient for the court to instruct the jury, as it did, in that respect. The pistol was manifestly a deadly instrument, and it was not necessary that the court should so specially designate it.

It is not necessary to pass upon the correctness of the instruction as to the aspect of the case in which the court told the jury that the prisoners would be guilty of murder, because there was a verdict of guilty of manslaughter. There was nothing in the instruction that could mislead the jury or prejudice the prisoners in other aspects of the case.

It is assigned as error that the court stated to the jury a "hypothetical case." This is a misinterpretation. The court only (618) presented two views of the case, clearly warranted by the evidence, that facilitated the inquiry to be made by the jury. A chief object of the instructions from the court is to help the jury to a just and intelligent view of the issue before them, without intimating any opinion of the court as to the weight of the evidence. When the evidence presents two or more aspects of the case, it is proper — certainly not error — for the court to carefully direct the attention of the jury to them.

The court was further requested to instruct the jury that there "was no evidence that Harris and Kirby (two of the appellants) were in the room from which the fatal shot was fired." This it properly declined to do. The witness Merritt testified intelligently, and that "Jack Barbee, Frank Kirby, Bill Lynn, Pat Brewer and myself were there when the students came, and he and Jesse Harris and Frank Kirby went upstairs. Frank Kirby didn't have anything, but had his hand in his pocket. The other two had pistols. I was in the house and heard the firing. . . . A minute or two after the parties got upstairs the firing commenced." There was other evidence tending to show that the prisoners named were about Pat Brewer and the house mentioned, making common cause with him at the time the fatal shot was fired. Clearly there was evidence from which the jury might reasonably infer that they were in the room referred to at that time.

We have carefully examined the record and discover no error therein, and we declare that there is none.

Let this be certified to the Superior Court according to law.

Affirmed.

Cited: S. v. Jacobs, 107 N.C. 876; Burnett v. R. R., 120 N.C. 518;S. v. Melton, ibid., 597; S. v. Booker, 123 N.C. 725; S. v. Hicks,130 N.C. 710.

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