State v. Morris

• Decision Date: 31 December 1824
• Citation: 10 N.C. 388
• Court: North Carolina Supreme Court
• Parties: STATE v. MORRIS.

10 N.C. 388

STATE

v.MORRIS.

SUPREME COURT of NORTH CAROLINA

DECEMBER TERM, 1824

1. A judge is not bound by law to recapitulate all the evidence to the jury in his charge; it is a matter left to his own discretion. If, however, he thinks proper to deliver a charge, he must do so according to the rule laid down in the act of 1796, ch. 52.

2. If a person be present aiding and abetting in the commencement of an assault with intent to rescue a prisoner, he does not cease to be guilty because his fears prevent him from going all lengths with his party.

INDICTMENT against the defendant and several others for an assault and battery on one King, a constable, while in the execution of his office, tried before Badger, J., at MECKLENBURG.

The material part of the evidence below was as follows:

On the part of the State is was proved by several witnesses that while King was conveying a prisoner to the jail of Mecklenburg, under a mittimus from a justice of the peace of that county, the defendant, in company with several others, came up to him and said the prisoner should not go to jail if money or security would save him. The officer then told him that the prisoner had once had an opportunity before the justice to give security and had refused. Defendant then askedpermission to step aside with the prisoner to talk with him; this the offier refused, unless he himself went with them, which he agreed to do. Defendant, and the officer in charge of his prisoner, then went

aside from the jail (at the door of which this conversation had passed), followed by the other persons in company. When they had gone about ten paces the defendant said the prisoner should not go to jail at all. This was repeated by others of the party, and immediately several of them set upon the officer, attempted to rescue the prisoner, and in the prosecution of this attempt the officer was assaulted and beaten.

It did not appear that the defendant himself assaulted or struck the officer. It was also proved that the observation about bailing the prisoner was made by the defendant in a threatening manner.

It was then proved by several witnesses for the defendants that when the officer was set upon and the struggle was going on to rescue the person in custody, the defendant retired from the crowd and said: "Boys, you had better take care what you are about; I will have nothing to do with this."

The case was submitted without argument by the counsel, and the presiding judge, without repeating the evidence to the jury, left the case to them, with instructions to inquire upon the whole evidence whether the defendant and the other persons present made the assault with an intent to rescue the prisoner, and informed the jury that, if this was the fact, all the parties present concurring in the design and encouraging the attempt were guilty as much as if they had personally struck the blows, and the jury was directed, if the defendant was thus concerned, to find him guilty.

The defendant's counsel then requested the judge to repeat theevidence to the jury; this the judge declined to do, but informed the counsel that he was at liberty, then, if he wished it, to argue the case to the jury.

The counsel then prayed the judge to instruct the jury that if they believed the testimony of the defendant's witnesses as to the defendant's declaration, before stated, they should acquit the defendant. The court refused to give such instruction.

The defendant was convicted. Witnesses were then examined by the defendant's counsel, as to the defendant's previous conduct, in mitigation of the punishment. The court intimated an opinion afterwards, when judgment was about to be prayed, that the offense required to be punished by imprisonment, and the defendant's counsel then moved for a new trial; first, because the judge refused to repeat the testimony to the jury, and, second, because the judge refused to give the instructions prayed for by the defendant's counsel.

A new trial having been refused, and judgment pronounced, the defendant appealed.

The case was submitted by the Attorney-General without argument.

TAYLOR, C. J., The...