State v. Baker

• Decision Date: 31 January 1869
• Citation: 63 N.C. 276
• Court: North Carolina Supreme Court
• Parties: THE STATE v. A. BAKER, J. THOMAS and G. JOHNSON.

63 N.C. 276

THE STATE

v.A. BAKER, J. THOMAS and G. JOHNSON.

Supreme Court of North Carolina.

January Term, 1869.

A Court of Oyer and Terminer held in 1868 by virtue of the act of 1862, (Feb. 9,) and under a commission from Governor Holden to a Judge of the Superior Court, was competent to hear and determine cases of crime.

Where a Judge of the Superior Court holds a term, it will be taken, prima facie at least, that he was authorized so to do, and that it was regular.

A general verdict of guilty, upon an indictment containing several counts, will be supported, although these are inconsistent as regards their statement of the manner of killing.

A charge that--“if the acts deposed to by C. P. were the cause of the death, it was murder,” held to be no trespass upon the province of the jury.

During a capital trial, one of the jury (then out of Court in charge of an officer for the purpose of eating dinner) was allowed to pass by or near a number of persons, and to eat his dinner a short distance from the other jurors, although he conversed with no one,-- held to give no just cause of complaint to the prisoners.

( Sparkman v. Daughtry, 13 Ire. 168; S. v. Ledford, 6 Ire. 5; S. v. Morrison, 2 Ire. 9; S v. Miller, 7 Ire. 275; S. v. McCandless, 9 Ire. 375; S. v. Williams, 9 Ire. 140; S. v. Hester, 2 Jon. 83, cited and approved.)

MURDER, tried before Mitchell, J., at a Court of Oyer and Terminer for HALIFAX, held in July 1868.

The record set forth a commission from Governor Worth to Judge Mitchell, dated June 22, 1868, authorizing him to hold the Court in question at such early time as he might appoint; also one from Governor Holden to the same, dated July 14, 1868, giving him like authority to hold a Court on the 27th day of July 1868.

The indictment contained four counts, which charged the homicide to have been committed (1) with a stick, (2) by casting to the ground, striking, kicking and beating, (3) by drowning, and (4) by some means unknown.

The prisoners and the deceased had been playing cards during the night, the deceased being winner. The prisoner Baker thereupon, became angry, abusing the deceased, and insisting that he should return the money. This was refused. Thereupon, as was testified by a witness named Cuba Panton, who was in a room adjoining, Baker renewed his abuse, and struck the deceased with some instrument that had a handle, and knocked him down. He fell backwards, his head striking upon a passage floor. Thereupon, a blow with the same or a similar weapon was given by each of the other prisoners. They then dragged him off groaning and begging for mercy. He was not seen again until some days afterwards, when his body was found in Roanoke river. When found, a wound, apparently made by a hammer, was discovered on the frontal bone; a physician pronounced it to be mortal, and the cause of the death. Other wounds not of themselves sufficient to produce death, were found upon the body.

The Court instructed the jury that if the acts deposed to by Cuba Panton were the cause of the death of the deceased, (Wade Ditcher,) it was murder by the prisoners. The prisoners excepted.

During the trial the jury were permitted, under the charge of an officer, to eat their dinner. One of them was allowed by the officer to pass by or near a number of persons, and to eat his dinner at a short distance from the others. It was not alleged or believed that he conversed with any one.

The term of the Court was stated in the case to have been held under an appointment as Judge of the Superior Court, and under the special commission by Governor Holden.

Verdict, Guilty; Rule for a new trial; Rule discharged; Judgment, and appeal.

Conigland & Solomon, for the prisoners .

1. The acts of 1862 and 1863 ceased to have effect upon the adoption of the present Constitution; and that Constitution does not authorize Courts of Oyer and Terminer.

2. The charge in regard to the evidence of Cuba Panton, assumed the “acts” to exist.

3. The charge violates the rule in the State v. Scates, 5 Ire. 420.

The judgment must be arrested, for the counts charge the killing, in inconsistent ways, and the verdict being general, there can be no judgment upon it. Reg. v. O'Brien, 2 Car. and Kir. 115; Reg. v. Downing, 2 Ib. 386.

They also cited Chitty, Cr. L. 1st, 258; 3d, 734; Hale. Pl. Cr. 1st, 439; S. v. Moses, 2 Dev. 468.Attorney General, contra.

READE, J.

The statute provides that, for “good cause shown, the Governor shall issue commissions of Oyer and Terminer to the Judges of the Superior Courts of law, which Courts of Oyer and Terminer shall have jurisdiction to indict, try,” & c.,--Act of 1862, February 9.

“The laws of North Carolina, not repugnant to this Constitution, or to the Constitution of the United States, shall be in force until lawfully altered”-- State Constitution, Art. 4, s. 24.

Under the Constitution, the Courts are “Supreme Courts, Superior Courts, Courts of Justice of the Peace, and Special Courts”--Art. 4, s. 4.

A Court of Oyer and Terminer held by a Judge of the Superior Court, as provided for in the act of 1862, supra, is a Superior Court, and is not repugnant to the Constitution, but is in consonance with it. The act of 1862 is, therefore, in force.

It appears from the record in this case, that two commissions issued to Judge Mitchell to hold the Court, the action of which we are reviewing--one from Governor Worth, before the late provisional government expired, and one from Governor Holden, after the present permanent government came in. And the statement of the case, which stands in the place of the prisoners' exceptions, sets forth that Judge Mitchell held the Court “under his appointment as Judge of the Superior Court, and the special commission of Governor Holden.” We think, therefore, that it appears affirmatively that the Court was properly constituted, and had jurisdiction. But it was not necessary that it should appear on the record affirmatively; for, when a Court is held by a Superior Court Judge,--and Judge Mitchell is such a Judge,--it is not necessary that the record should set out the authority by which he held it, because, prima facie at least, it is to be taken that he is authorized to hold it, and that it is in all things regular. Sparkman v. Daughtry, 13 Ire. 168; State v. Ledford, 6 Ire. 5.

The indictment has several counts, one charging the killing by blows with weapons, another, by drowning, and a third, by means to the jurors unknown. And there was a general verdict of guilty. The only evidence offered was upon the first count; and there was evidence of the blows, and the physician was of the opinion that the death was caused by the blows. His Honor's charge was confined to the first count,--telling the jury that if they believed that the blows were the cause of the death, it was murder.

It was in evidence that the dead body was found in the river some days after the blows were given, but this was not relied on as evidence of his being drowned, and there was no charge upon, or consideration of the count for drowning.

The prisoner insists that as...