10 N.C. 388 (N.C. 1824), State v. Morris

Citation:10 N.C. 388
Opinion Judge:TAYLOR, Chief Justice.
Party Name:State v. Morris.
Court:Supreme Court of North Carolina

Page 388

10 N.C. 388 (N.C. 1824)

State

v.

Morris.

Supreme Court of North Carolina.

December Term, 1824

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.

If a person be present aiding and abeting 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.

THIS was an 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, Judge.

The material part of the evidence below was as follows:

On the part of the state, it 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 asked permission to step aside with the prisoner to talk with him; this the officer 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...

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