Judges: Adams, Bbogden
Filed Date: 3/22/1933
Status: Precedential
Modified Date: 11/11/2024
The prisoner neither testified nor introduced any witness, and at the close of the evidence offered by the State he moved to dismiss the action as in case of nonsuit. O. S., 4643. The ground upon which the motion was made is the insufficiency of the testimony tending to identify the prisoner as the man who shot and killed the deceased; and the asserted insufficiency is based upon the assumption that the testimony of identity, as given by Mrs. Carter, is the product of imagination in part and in part of auto-suggestion. Whence it is argued that this Court should recognize the failure of the jury to perceive the fallacy of the testimony and should hold as a matter of law that the evidence is insufficient to sustain the verdict — “otherwise,” it is said, “a great and irreparable injury will be done.”
Mrs. Carter, the wife of the deceased, was the only witness who attempted to identify the assailant. On this point she was minute, as will appear from the following summary of her testimony: “As I went through the screen door I looked over the curtain and saw a man standing there just a step from the door, inside the door. He was looking at my husband ... I asked him what he meant. He was about seven
It may be doubted whether our system of jurisprudence contains any principle more strictly defined than that which separates the functions of the courts from those of the jury. According to a custom that formerly prevailed evidence was submitted to a jury probably as a supplement to their own knowledge; but in a later period the custom was abandoned, and the jury assumed the character, since maintained, of a determining-agency whose sole function is “to give a true verdict according to the evidence.” The discharge of this duty implies the necessity of examining the testimony, finding the facts, and applying the law to the facts afe found.
There was no error in tbe court’s denial of tbe motion to dismiss tbe action.
In addressing tbe jury, counsel for tbe private prosecution used language indicating that tbe wife of tbe prisoner knew what clothes tbe prisoner bad worn on tbe night of tbe homicide, thereby intimating, it is contended, that she bad not testified in bis behalf. Attention bas frequently been called to tbe fact that remarks of this character justify tbe award of a new trial in case of conviction unless tbe error is cured by tbe prompt action of tbe court. Upon objection by tbe prisoner, tbe court stopped tbe argument, directed tbe attorney to desist, and instructed tbe jury not to be influenced by tbe remarks to which objection bad been made. In bis .charge bis Honor specifically instructed tbe jury to exclude from their minds everything except the evidence and tbe law as declared by the court.
Tbe same counsel suggested, also, that tbe prisoner bad not testified in bis own behalf by saying to the jury that tbe prisoner knew whether be bad been in tbe automobile below tbe Dix home; but again tbe court promptly interposed. It is admitted in tbe prisoner’s brief that .the argument was stopped; and thereafter, at least three or four times in tbe charge, tbe court plainly instructed tbe jury not to permit tbe
According to tbe decisions of tbis Court tbe error of counsel in referring to tbe prisoner’s declining to testify was cured by tbe immediate action of tbe court and tbe emphatic and repeated instruction given to tbe jury. S. v. Harrison, 145 N. S., 408. In tbis case it is said: “We undertake to correct tbe errors of tbe judge and not those committed by attorneys. Tbeir errors are to be corrected by tbe trial judge, and when be fails in bis duty it becomes a ground of exception.” So, also, as to tbe intimation tbat tbe prisoner’s wife bad not testified in bis behalf. Tbe court instantly suspended tbe argument and afterwards instructed tbe jury to disregard everything but tbe evidence and tbe law. Tbe course thus taken conforms to tbe principle laid down in S. v. Spivey, 151 N. C., 676. Tbe comment of counsel was improper, but as said in tbe case last cited bis Honor fully corrected tbe error.
On tbe evening of 8 May, at about 9 o’clock, tbe prisoner went to tbe borne of Reeves Cooper and put bis car in tbe shed. He left it there and immediately went away; be did not return. Tbat night tbe car was seized by an officer. Tbe description of it agreed in details with tbat of tbe car tbat bad been stopped in front of tbe store on tbe evening of tbe homicide. Meanwhile no change bad been made in its contents. Tbe officer found in it tbe gun, tbe shells, and tbe implements above described. He testified to tbis effect and the prisoner excepted.
Tbe exception is without merit. Evidence of tbis character is admissible on tbe principle tbat it tends to show a design or plan. Tbe existence of such design or plan may be proved circumstantially as well as by direct utterance. In Wigmore on Evidence, it is said tbat in tbe production 'of such proof two sorts of circumstantial evidence are available: (1) Conduct as indicating tbe inward existence of a design; (2) prior or subsequent existence of tbe design, as indicating its existence at tbe time in question. Accordingly, “tbe acquisition or possession of instruments, tools, or other means of doing tbe act is admissible as a significant circumstance; tbe possession signifies a probable design to use; tbe instruments need not be such as are entirely appropriate, nor such as were actually put in use.” Yol. 1, secs. 88, 237, 238. Bishop says tbat it is competent to prove tbe possession of tools by a person charged with crime, even those not adapted to tbe crime if found with others which are adapted to its commission; and, according to Underbill, all tbe details of tbe finding may be proved, it being immaterial tbat tbe tools found were not adapted to tbe commission of a specific act. 3 Bishop’s New Grim. Procedure, sec. 151; Underbill’s Grim. Evidence, sec. 570.
These significant facts should be kept in view: The prisoner owned the car; some of the tools were suitable for use in burglary; the gun and shells, for use in burglary or robbery. A difference in the use to which the various articles were adapted does not preclude the admission of proof that they were in the prisoner’s possession.
The indictment contains two counts, the first charging the essential facts of murder as required by C. S., 4614, the other charging murder committed in the perpetration of or in the attempt to perpetrate robbery. The prisoner excepted to an instruction referring to murder committed in the perpetration of robbery “or other felony.” The first count in the indictment is sufficient; it contains “every averment necessary to be made.” S. v. Arnold, 107 N. C., 861; S. v. R. R., 125 N. C., 666. The instruction complained of was relevant upon the matters involved in the first count.
"We have considered the prisoner’s exceptions with care, and find no error in the trial. In no view of the evidence was there any provocation on the part of the deceased, who was ruthlessly slain while in the prosecution of his daily task. The doctrine of manslaughter was eliminated, the question being whether the prisoner was guilty of murder in the first or second degree, or not guilty.
No error.