State v. Barber

• Decision Date: 28 November 1893
• Parties: STATE v. BARBER.
• Court: North Carolina Supreme Court

18 S.E. 515

113 N.C. 711

STATE v. BARBER.

Supreme Court of North Carolina

November 28, 1893

Appeal from superior court, Rowan county; Winston, Judge.

Charles Barber and others were tried under an indictment containing two counts,--one for larceny, and the other for receiving stolen goods, knowing them to have been stolen. Defendant Barber was convicted on the second count, and appeals. Affirmed.

It is sufficient ground on which to challenge a juror that he is attending court in the expectation of being called as a witness for the opposite party, the danger of bias not being removed by showing that he expects to testify only as to the character of a defendant charged with felony.

C. M Busbee and S. F. Mordecai, for appellant.

The Attorney General, for the State.

AVERY J.

A talesman was called, who, upon being challenged for cause by the solicitor, stated that one of the defendants had spoken to him about the case, and had requested him to attend as a witness to prove the character of that defendant, who had stated nothing but the fact that he was indicted; that he had agreed to become a witness for the defendant, and was attending the court without having been summoned to appear. Two jurors had already been challenged peremptorily for the state, but the defendants had 28 peremptory challenges, which were not exhausted by them. The prosecuting officer asked the court, in the exercise of its discretion, to excuse the juror, and he was so excused. The authority of the court, in the exercise of a sound discretion, to excuse a juror at his own request, as a favor to him, and before he is accepted as one of the panel, it seems to us, cannot be seriously questioned. If, however, taking the whole statement together it is susceptible of the construction that the judge meant to excuse the juror because he was voluntarily attending for the purpose of being examined to prove the good character of one of the defendants, we think it equally clear that it was not error to sustain a challenge to the favor by either of the parties to an action upon the ground that the juror was attending the court, whether under subpoena or not, in the expectation of being called upon as a witness for the opposite party. The danger of bias is not removed by showing that the witness has no knowledge of the more material facts bearing upon the issue, and expects to testify only as to the character of a defendant charged with a felony. 1 Bish. Crim Proc. §§ 767, 768.

The jury could not have been misled as to the weight to be given to the testimony of an accomplice. The defendant had no just ground to complain of the instruction "that they [the jury] might convict on the unsupported testimony of an accomplice, but that it was dangerous and unsafe to do so but if the story of the accomplice, taken with the other facts and circumstances in the case, carry conviction to the minds of the jury, then it is their duty to convict. The jury must be satisfied, beyond a reasonable doubt, of the guilt of the defendant, before they can convict." State v. Mitchener, 98 N.C. 689, 4 S.E. 26; State v. Miller, 97 N.C. 484, 2 S.E. 363; State v. Stroud, 95 N.C. 626. "The unsupported testimony of an accomplice, if it produces entire belief of the prisoner's guilt, is sufficient to warrant a conviction; and the usual direction to the jury not to convict upon it, unless supported by other testimony, is only a precautionary measure to prevent improper confidence being reposed in it, and the propriety of giving this caution must be left to the discretion of the judge who tries the cause." State...