State v. Benton

• Decision Date: 31 December 1836
• Citation: 19 N.C. 196
• Parties: THE STATE v. JOSEPH BENTON.
• Court: North Carolina Supreme Court

19 N.C. 196

THE STATE

v.JOSEPH BENTON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1836

1. On the trial of a capital case, the names of the jurors of the original panel should be first put into the box and drawn, before those of the tales jurors are put in and drawn; and the jurors summoned under a special venire facias, as provided by the act of 1830, c. 27, are in this respect to be regarded as talesmen.

2. The officer prosecuting for the State, may on a capital trial direct a juror to stand aside until the panel be gone through with, which is a challenge for a cause to be shown at the end of the panel; and if a cause be then shown and disallowed, the prosecuting officer may still challenge the juror, peremptorily or not, at his discretion. But this practice of permitting the prosecuting officer to defer showing his cause of challenge until the panel be gone through, must be exercised under the supervision of the court, who will restrain it if applied to an unreasonable number.

3. A juror may be examined as to opinions honestly formed, and honestly expressed, manifesting a bias of judgment, not referable to personal partiality, or malevolence; but if the opinion has been made up and expressed under circumstances which involve dishonor and guilt, and where such expression may be visited with punishment, he ought not to be required to testify so as to criminate himself.

4. An opinion fully made up and expressed against either of the parties on the subject-matter of the issue to be tried, is good cause of principal challenge; but an opinion imperfectly formed, or one merely hypothetical, that is, founded on the supposition that facts are as they have been represented or assumed to be, does not constitute a cause of principal challenge, but may be urged by way of challenge to the favor, which is to be allowed or "disallowed as the triers may find the fact of favor or indifferency.

5. A challenge of a juror because of his having formed and expressed an opinion upon the question to be tried, can be made only by that party against whom it was so formed and expressed.

6. The forbearing of the court to discharge a juror to whom no exception has been taken, though there be ascertained cause of challenge against him, cannot be assigned for error, because the right of challenge in the parties remains, and neither of them can be injured by such forbearance to act on the part of the court.

7. The nature and legal consequences of the practice of putting what is called the preliminary question to jurors upon capital trials, explained, and such practice, except under particular circumstances, disapproved of; and the legal and regular mode of trying exceptions to jurors, and forming juries on trials for capital offences, pointed out and recommended.

8. If one man assails another, and is about to commit an unauthorized act of violence upon him, and a third person interposes to prevent it, and is killed by the assailant, it is murder.

The prisoner was put upon his trial at Sampson on the last Circuit before his Honor Judge Saunders, upon a charge

of Murder. When the jury was about to be formed, it appeared that there were present seventeen jurors of the original venire, and thirty talesman. The prisoner's counsel requested that the names of all the jurors, both those of the original panel and the talesman should be put into the box at the same time, but the judge refused this request, and directed the clerk to put the names of the original jurors alone into the box; which was accordingly done, and they were drawn and tendered. Three of those jurors upon their oaths stated, that they had not formed and expressed an opinion relative to the guilt or innocence of the prisoner at the bar, but they were nevertheless, on motion of the solicitor for the state, but against the prisoner's consent, set aside until the whole number then in the box were drawn and tendered. They were then called back, and two of them were challenged by the state, and one by the prisoner. Three other jurors swore that they had formed and expressed an opinion; when the judge inquired further of them whether they thought that the opinion was so fixed as to influence them any way in making up a verdict? they answered that they thought not, but that they could pass impartially on the case after hearing the evidence. They were then tendered, and challenged by the prisoner for cause; which was overruled; and the prisoner then challenged them peremptorily. The prisoner had challenged thirty-two jurors without cause, and the three as above, making in all thirty-five; and there being but eleven accepted, another was tendered, and the prisoner challenged him peremptorily; but the challenge was refused, and the juror sworn.

On the trial, a witness for the state, by the name of Matthews, testified, that he went to the store of one Brown, to see a man by the name of Armstrong, about some barrels: that the deceased was at work at the same place: that whilst there, the prisoner and Armstrong quarreled, and caught hold of each other, and were separated by witness: that the deceased said it was useless for prisoner to be making a parade, and that he was a better man than the prisoner: that the deceased was at work at the time, and laughed, andthe prisoner did not seem to regard him, but was in a passion with Armstrong; and, seizing a swingletree, struck Armstrong, and knocked him down: that witness took the swingletree from him: when he picked up a piece of wood,

and swore he would kill Armstrong: that witness took hold of the stick of wood with one hand, and the prisoner with the other, at which time Armstrong was about getting up: that he then saw the deceased leave his work, about thirty feet distance from them, and come briskly toward them, having nothing in his hand, saying nothing, and showing no anger, or disposition to fight: that on the deceased getting within a few yards of them, the prisoner let go the stick of wood, run his hand quickly into his pocket, and without having had time to open a knife, made at the deceased, and gave him a thrust; when the witness seeing the blood, said, "You have killed the man;" to which the prisoner replied—"By God, I have done what I wanted to do:" that the deceased was stabbed in the thigh, and died in a few moments; when the witness arrested the prisoner, who said, if they would give him a chance of making another lick and stroke with his knife, they might then hang him:—and that these events all occurred in quick succession after each other.

Wiliam Izzle, another witness, swore, that he was at Brown's: that the prisoner and Armstrong were in confusion in the store, when Brown ordered them out: that the prisoner, on going out into the yard, drew his knife, swore he was not to be put upon, and called on the persons present to bear witness that he put his knife open into his pocket: that Armstrong caught the prisoner by the collar of his coat, and swore that he could whip him: that the deceased did the same, but no blows then ensued: that the prisoner then got into a good humor, and went into the store and treated; when he and Armstrong again began to quarrel, and Brown ordered the prisoner out: that he went out and took up a swingletree, and on Armstrong's coming near him, knocked him down; when Matthews took the swingle-tree from him: that prisoner thenpicked up a large stick, and on Armstrong's saying something offensive, was going to strike him, when Matthews took hold of the stick: that witness then saw the deceased running towards the parties, until he got within four or five steps, and that Armstrong was then advancing towards the prisoner: that witness did not see the blow, but on looking round, saw the deceased standing, and his thigh bleeding: that he heard the deceased say, as he came up, "You can't serve me so:" that the deceased died in a few minutes;

and that the deceased and Armstrong were brothers-in-law.

His Honor, after explaining to the jury what murder was, and what provocation would reduce that crime to manslaughter, charged, that if two persons were engaged in a fight, and a third came up, and took part in the fight, and was killed, it would be but manslaughter; but such interfering person must either take part for one of the parties engaged, or encourage him, or act so as to induce the other party to believe that he was about to take part against him; otherwise, if killed by such party, though in a passion, it would be murder. If Armstrong had not touched the prisoner, or had touched him in anger, but they had become friends; or the prisoner had had time to cool, and had got into a good humour; or if there was no mutual combat between Armstrong and the prisoner, and the deceased came up as the friend of Armstrong, not having taken any part, and the prisoner stabbed him, it would not constitute a legal provocation. But it was for the jury to decide, whether Armstrong and the prisoner were fighting; and if so, whether, at the time the deceased came up, from what had before taken place, and from what he then said or did, the prisoner had sufficient grounds to believe, that the object of the deceased was to take part against him; for if so, it would mitigate his case to manslaughter; but otherwise it would be a case of murder. The jury returned a verdict of guilty; and the counsel for the defendant moved for a new trial, upon the grounds, that the court had erred, 1st. In refusing to permit the names of the tales jurors to be put into the box with those of the original venire. 2dly. In permitting the jurors to be set aside, on the motionof the solicitor for the state, until the panel had gone through. 3dly. In disallowing, the prisoner's challenges for cause to the jurors who swore that they had formed and expressed an opinion relative to the prisoner's guilt or innocence. And 4thly. In giving an erroneous instruction in the charge to the jury. The motion for a new trial was disallowed, and sentence of death...