State v. Baxter

• Decision Date: 31 January 1880
• Citation: 82 N.C. 602
• Court: North Carolina Supreme Court
• Parties: STATE v. J. W. BAXTER.

82 N.C. 602

STATE

v.J. W. BAXTER.

Supreme Court of North Carolina.

January Term, 1880.

INDICTMENT for Larceny, tried at Fall Term, 1879, of CLEAVELAND Superior Court, before Buxton, J.

There was a verdict of guilty, and from the judgment pronounced the defendant appealed.

Attorney General, for the State .

Messrs. W. P. Bynum and Hoke & Hoke, for defendant .

SMITH, C. J.

The defendant is charged with stealing money of the value of ten dollars in four counts contained in the indictment, describing it separately as the property of L. W. Sanders and others, P. S. Baker and others, the Southern Express Company, and of persons unknown. There was no dispute as to the ownership of the money, and on the trial the jury rendered a general verdict of guilty. Three exceptions were taken by the defendant's counsel to the rejection of evidence offered:

1. The evidence tended to show that a package of money had been sent by Sanders & Blackwood from Charlotte through the Southern Express Company to Dilling & Baker, at King's Mountain station, and was there received by the agent and locked up in an iron safe for delivery the next morning. The agent put the key in his pantaloons pocket, undressed and went to bed, leaving in an adjoining room the defendant and Nelson Falls, a colored boy about fifteen years of age, and one other person. During the night the key was taken from the agent's pocket, the safe opened and relocked, and the package of five hundred dollars stolen. Soon after, the key was found on the ground about fifty yards west of the station house by one John Harman, who pointed out the place to the agent. During the examination, the defendant's counsel proposed this question to the witness: “Was the key found where the boy Nelson said it was?” The question was excluded. The declaration is offered as a fact showing that Nelson knew where the missing key was, and must have been cognizant of the theft, and therefore he and not the defendant was the guilty party.

We think the evidence was incompetent. The issue before the jury was as to the defendant's guilt, and this must be affirmatively proved by the state to warrant a verdict against him. Evidence tending to show the guilt or complicity of another in the commission of the imputed offence, does not disprove the criminality of the defendant, and if received would direct the attention of the jury from the issue on trial to another and different inquiry, and thus open the door to other corroborative and rebutting testimony. The objection to such practice is manifest. The evidence to be admissible must not only implicate another, but his guilt, as in a case of disputed identity, must be inconsistent with that of the defendant. This statement of the law is, in our opinion, supported by the adjudicated cases.

Thus the suspicious conduct of one not on trial, his pointing out the place where he put the stolen tobacco, and his subsequent flight, in the nature of the confession of the crime, were ruled out when offered in exculpation of the defendant, the court saying, “there is nothing in the acts or declaration of Brett inconsistent with the guilt of the defendant; both may have been guilty. ” State v. White, 68 N. C., 158. So in State v. Bishop, 73 N. C., 44, where the offence of larceny was also charged and similar testimony pointing to another as the criminal, was offered and refused, the court declaring that “Bryant's guilt or innocence was not necessarily connected with the guilt or innocence of the defendant. The crime charged upon the defendant might be as readily committed by many as by one. Both might be guilty with entire consistency. Proof of the guilt of Bryant would therefore not tend to establish the innocence of the defendant.” The cases cited by the defendant's counsel ( State v. Haynes, 71 N. C., 79; State v. Davis, 77 N. C., 483) are in harmony with this view of the law.

2. A charge had been made and a warrant taken out against Nelson for the same offence and dismissed, and the witness who prosecuted it was asked, “What statements were made to you by Nelson that induced you to take out the warrant against him?” This question was ruled out, and properly ruled out for the same reasons as the preceding question. It was a proposition to prove the...