State v. Applewhite

Decision Date30 June 1876
Citation75 N.C. 229
PartiesSTATE v. GEORGE APPLEWHITE.
CourtNorth Carolina Supreme Court
OPINION TEXT STARTS HERE

The general words of the Amnesty Acts of 1872 and 1874 include the band of outlaws, known as the “Lowery band.”

The prisoner, who was a member of that band, was convicted and sentenced to be hung in 1870; while the cause was pending upon appeal in this Court, he made his escape. Upon the hearing of the appeal, this Court decided there was no error on the trial below; and in 1875, the prisoner was brought to the bar of the court below, and judgment was prayed in accordance with the decision of this Court. Thereupon the prisoner moved the court that he be discharged, upon the ground that he had been granted amnesty and pardon by the General Assembly: Held, that the effect of the appeal was to vacate the sentence pronounced in 1870; and that the decision of this Court was not a sentence or judgment, but simply an order to the court below to proceed to sentence and judgment; and that therefore the prisoner was entitled to his discharge.

INDICTMENT for Murder, tried before MCKAY, J., at Fall Term, 1875, of COLUMBUS Superior Court.

The case was before this Court at June Term, 1870, and is reported in 64 N. C. Rep.

At Fall Term, 1875, in pursuance of the decision of this Court, the prisoner was again brought to the bar of the Court and the Solicitor prayed the judgment of the Court. Upon being asked by the Court what he had to say why sentence of death should not be pronounced against him, the prisoner, through his counsel, answered that amnesty and pardon had been granted him by an Act of the General Assembly of North Car lina, ratified the 8th day of December, 1874, and prayed the Court that he might be discharged. The Court refused the motion, and the prisoner appealed.

Attorney General Hargrove, for the State .

W. F. French, for the prisoner .

PEARSON, C. J.

The objection that it does not appear by the transcript, sent to this Court, that the prisoner was a member of the “Lowery band,” which had been notorious for outrages committed in the County of Robeson, or that the prisoner is the same individual who was convicted in 1870, upon an indictment against him and others of said band for the murder of Reuben King, is met by the statement of the Hon. Daniel L. Russell, (who presided as Judge at the trial,) which the Attorney General, with the approval of this Court, consents may be filed as a part of the case.

It is clear the general words of the Amnesty Acts of 1872 and 1874, include the Lowery band; if there could have been any doubt about it, the exclusion of “Stephen Lowery,” one of the band, from the benefit of the amnesty in the Act of 1874, leaves no room for doubt.

The prisoner being at the bar for sentence, prayed the benefit of the “Amnesty Act,” and asked to be discharged. His Honor refused to discharge him.

As a general rule, it is in bad taste for a Judge of the Superior Court to encumber the record with an argument in support of his opinion, but sometimes, especially in a “criminal action,” when prisoners are not able to procure the aid of counsel before this Court, it is desirable that his Honor should set out briefly the ground on which he puts his decision.

We are left to conjecture that his Honor put his decision upon the ground that the prisoner was “under sentence,” and was consequently not embraced by the words of the Act of 1874. The prisoner was convicted and sentenced to be hung in 1870. He appealed to the Supreme Court. That Court decided in 1870 there is no error, and ordered its decision to be certified to the Superior Court, to the end that further proceedings should be had agreeable to law. In the meantime the prisoner had made his escape, and no further proceedings could be...

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3 cases
  • State v. Frazier
    • United States
    • North Carolina Supreme Court
    • 14 Enero 1972
    ...Parole, §§ 5 and 9. Amnesty has been granted in this State by acts of the Legislature. See: State v. Blalock, 61 N.C. 242, and State v. Applewhite, 75 N.C. 229, relating to the Amnesty Acts of 1866, 1872 and 1874. See also: State v. Bowman, 145 N.C. 452, 59 S.E. 74, and State v. Love and We......
  • State v. Bowman
    • United States
    • North Carolina Supreme Court
    • 30 Octubre 1907
    ...is sustained by well-considered decisions in other jurisdictions. State v. Blalock, 61 N.C. 242; State v. Keith, 63 N.C. 140; State v. Applewhite, 75 N.C. 229; re Briggs, 135 N.C. 119-144, 47 S.E. 403; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; State v. Forkner, 94 Iowa, 733, 62 N.W. 683......
  • Davis v. Hill
    • United States
    • North Carolina Supreme Court
    • 30 Junio 1876
    ... ... his argument, and insisted that the witness had given the same evidence when recalled as he had claimed that he had given, and proceeded to state what he had at first claimed to be the testimony, and then what he claimed to have been his testimony when recalled. The Court being of the opinion ... ...

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