State v. French

Adams, J.

The statute upon which the indictment is founded provides that if any person shall in a secret manner maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person, although the person assaulted may be conscious of his adversary’s presence, he shall be guilty of a felony. In a comprehensive analysis of the statute the trial judge accurately instructed the jury with respect to the law applicable to the various phases of the evidence, and in no aspect is the charge justly subject to the criticism that he failed plainly and correctly to state the evidence or to explain the law.

The State took the position that the defendant and Owens had contrived the assault previously to the meeting on Holden Eoad, and upon this theory the court submitted to the jury the question of their criminal conspiracy. The defendant contended that there was no evidence of a conspiracy between Owens and herself or of her participation in the assault, and upon this ground she demurred to the evidence and moved that as to her the action be dismissed. The denial of the motion calls for an examination of the testimony concerning the relation of the parties prior to and at the time of the assault.

It is evident that Owens bore toward French a feeling of hostility. Their estrangement, which seems to have originated in visits made by Owens to the residence of French ostensibly to attend and restrain the latter while under the influence of liquor, culminated, according to the testimony of Owens, in their agreement to meet each other at the time and place at which the assault was committed and, impliedly at least, to settle their difficulty, if need be, by violence. French denied the alleged agreement and testified that he and Owens had been friends and that tbeir “friendship had continued for a considerable length of time.”

It is no less manifest that the relation between the defendant and her husband was not cordial. He was addicted to drink; frequently they quarreled; and in the latter part of January she told him that,he “would not be living in twenty-four hours.” On Sunday evening they had another contentious wrangle, following which he was arrested and imprisoned. Sometime the next day she remitted the premium on his policy or policies of insurance payable in the event of accidental death, in which she was named as beneficiary. It was in evidence that the defendant suggested the direction in which her car should be driven on Monday evening, and that immediately after the assault she abandoned her husband with pitiless unconcern and hastened away in the car of her codefendant, whom she subsequently attempted to defend against the assault. There was evidence in contradiction and explanation, but the apparent inconsistencies were appropriately referred to the jury as the final arbiters of the facts.

The first five exceptions are addressed to parts of French’s testimony which was offered for the purpose of showing disagreement and antagonism between the defendant and her husband. It is argued that this testimony was admitted in breach of the statutory provision that neither husband nor wife shall be competent to give evidence against the other; but proof of an assault is an exception to the general rule. C. S., 1802; S. v. Davidson, 11 N. C., 522. In S. v. Alderman, 182 N. C., 917, this Court approved the following statement taken from Wharton’s Criminal Evidence: “In all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other. Thus, the husband may be a witness against the wife when she is prosecuted for assaulting him.” The evidence was competent as tending to disclose the motive, purpose, and extent of the conspiracy.

The sixth exception refers to this incident: In the Greensboro Daily News of 29 July appeared an article entitled, “Two other charges against Bert Owens.” The defendant asked leave to inquire of the jury whether any of them had read the article. She offered neither an affidavit nor evidence of any kind as a basis for the motion and the court in the exercise of its discretion wisely declined to stay the trial and embark upon the proposed exploration. The defendant was not deprived of her right to have the question investigated upon a motion to set aside the verdict. Banks v. Mfg. Co., 108 N. C., 282; S. v. Jackson, 112 N. C., 851.

We see no satisfactory reason for sustaining the exceptions to French’s testimony in regard to the policies of insurance and the payment of the premium. The contents of the policies were entirely collateral to the assault charged in the indictment and were therefore open to parol proof. S. v. Ferguson, 107 N. C., 846; S. v. Surles, 117 N. C., 721; S. v. Sharp, 125 N. C., 631; S. v. Hayes, 138 N. C., 660; S. v. Neville, 157 N. C., 591. Besides, the objection is made harmless and the discussion academic in view of the defendant’s admission that she knew the policies bad been issued and that she paid the premium with her husband’s money. Equally competent and material was evidence offered to show the defendant’s failure to visit her husband after be bad entered the hospital, the agitated “arguments” in which they bad often engaged, and the defendant’s inclination to “go off and stay out all night.”

Tbe remaining exceptions are formal. Tbe case was carefully tried; no competent evidence was excluded to tbe prejudice of tbe defendant; tbe law was accurately applied. ¥e find

No error.