State v. Banner
| Decision Date | 09 December 1908 |
| Citation | 63 S.E. 84,149 N.C. 519 |
| Parties | STATE v. BANNER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Watauga County; Ferguson, Judge.
Lute M Banner was convicted of murder in the second degree, and he appeals. Affirmed.
Where accused attempted to prove by a witness' cross-examination that accused was insane, and that his mental condition was continually deteriorating, the witness was properly permitted to testify on reexamination that he had been in the prisoner's store for nearly two years and that the latter's mental condition was about the same as when he first went there.
L. D Lowe, M. N. Harshaw, R. Z. Linney, and Mark Squires, for appellant.
Hayden Clement, Asst. Atty. Gen., for the State.
The deceased and a companion named Richards were walking down the street on the opposite side from the store owned and operated by the prisoner The prisoner, standing in his store door, called Richards to him. The deceased kept on down the street. As soon as Richards got near prisoner, the latter stepped into his store, got his double-barreled breech-loading gun, and fired it at the deceased, who had then gotten some 20 steps beyond the store, still on the opposite side of the street. The deceased was looking in front, without seeing or knowing that the prisoner was firing on him. The deceased fell, and died instantly. The prisoner relied solely upon the plea of insanity.
The prisoner after his arraignment and entry of plea of "not guilty" moved to quash the bill because the jury list had been last revised in 1905, and also challenged the array on the same ground. The motion to quash and the challenge to the array came too late, after entry of plea of "not guilty." State v. Gardner, 104 N.C. 740, 10 S.E. 146. Besides "the regulations contained in sections 1722-1728 of the Code (now Revisal 1905, §§ 1957-1960), relative to the revision of the jury list, are directory only, and while they should be observed, the failure to do so does not vitiate the venire, in the absence of bad faith or corruption on the part of the county commissioners." State v. Dixon, 131 N.C. 810, 42 S.E. 944; State v. Perry, 122 N.C. 1021, 29 S.E. 384; State v. Daniels, 134 N.C. 641, 46 S.E. 743. "The statute is considered directory merely so far as it relates to the action of the commissioners as to the time and place of drawing the jury, and as to revising the jury list." State v. Teachey, 138 N.C. 591, 50 S.E. 232; State v. Hensley, 94 N.C. 1027. The prisoner moved to quash the bill, because a member of the grand jury which found the bill had at the time a civil case pending and at issue. The court found such to be the fact, but refused to quash, the motion being made after entry of plea of not guilty. In State v. Gardner, 104 N.C. 742, 10 S.E. 147, this court, in commenting upon section 1741 of the Code, which has been brought forward verbatim in Revisal 1905, § 1970, said: Besides Laws 1907, p. 63, c. 36, forbids the allowance of a motion, made at any time, to quash a bill or in arrest of judgment, when made on the ground that a member of the grand jury finding the bill had failed to pay his taxes or was party to a case pending and at issue.
The defendant excepted because J. S. Lewis, a juror, who was drawn and tendered to prisoner, was challenged for cause to the favor, and on his examination said he had formed and expressed the opinion that the prisoner was guilty, and that it would take evidence to remove that impression. He also said on cross-examination that he could go into the jury box and hear the evidence and charge of the court and render a verdict as though he had never heard of the case. "The court finds that the juror is a fair juror," and the prisoner excepted. The ruling was correct. State v. Kilgore, 93 N.C. 533; State v. Green, 95 N.C. 611; State v. De Graff, 113 N.C. 688, 18 S.E. 507. Besides "the finding that the juror is indifferent is a matter in the discretion of the trial judge, and not reviewable in this court." State v. Register, 133 N.C. 751, 46 S.E. 21; State v. De Graff, 113 N.C. 688, 18 S.E. 507; State v. Potts, 100 N.C. 459, 6 S.E. 657; State v. Green, 95 N.C. 61; State v. Collins, 70 N.C. 241, 16 Am. Rep. 771. Further the jury was completed before the prisoner exhausted his peremptory challenges. No one sat on the jury to whom he objected. The prisoner's right is to object to, not to select, jurors. State v. Gooch, 94 N.C. 1007; State v. Hensley, 94 N.C. 1028. There were several other exceptions to jurors to same effect, but, besides being invalid for above reasons, they were abandoned by not being relied on in the prisoner's brief. Rule 32 (53 S.E. ix).
One Cook, clerk in the prisoner's store, testified that when the prisoner left five minutes after the shooting he told witness to "take care of his business." He further testified, on cross-examination by prisoner's counsel that the prisoner was considered an exceptionally good trader and shrewd merchant, and he had not noticed much difference in the last three or four months before the killing. He further said on re-examination that he had been in prisoner's store for nearly two years at that date, and prisoner's mental condition was about the same as when he first went into the store, and that during those two years he could not discover any change at all in prisoner's mental condition. Prisoner excepted. The witness further said, in reply to queries, that at any time in those two years the prisoner knew that it was wrong to shoot a man down, unless he was so drunk he would not know a man when he saw him. The cross-examination had endeavored to show by witness that the prisoner was insane, and these questions were legitimate to show that the prisoner was attending to business, and knew that it was wrong to shoot any one down. In State v. Haywood, 61 N.C. 376, the court approved a charge, when the defense of insanity was set up, "if the prisoner was conscious of doing wrong at the time he committed the homicide, he is responsible." The prisoner's counsel on cross-examination of this witness, the prisoner's clerk, who had been in the store with him daily for nearly two years, endeavored to show that the prisoner's mental condition had much deteriorated in the last four or five months, and it was competent, on re-examination, to contradict that supposition, and to elicit the witness' opinion (Clary's Adm'rs v. Clary, 24 N.C. 78) that during those two years, when the witness had the fullest opportunity of close observation of the prisoner, he at all times was sane enough to know that it was wrong to shoot a man down. Any one, though not an expert, who...
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