State v. Caldwell

• Citation: 40 S.E. 85,129 N.C. 682
• Parties: STATE v. CALDWELL.
• Decision Date: 20 December 1901
• Court: United States State Supreme Court of North Carolina

40 S.E. 85

129 N.C. 682

STATE v. CALDWELL.

Supreme Court of North Carolina

December 20, 1901

Appeal from superior court, Madison county; Moore, Judge.

Hezekiah Caldwell was convicted of murder in the second degree, and appeals. Affirmed.

Defendant and deceased had had some difficulty one morning, and later in the day, while deceased and his brother were passing the house where defendant was, and inquiring for him, defendant took a gun from a rack, and shot deceased through a crack in the house. Held, though making a case of murder in the first degree, a conviction of murder in the second degree was also supported.

W. W Zachary, for appellant.

Brown Shepherd, for the State.

FURCHES C.J.

Indictment for murder. At the trial, and before the jury were called or impaneled, the solicitor, with the permission of the court caused the following entry to be made upon the docket. "State v. Caldwell. In this case the state files notice (the prisoner being present in open court) that a verdict of guilty of murder in the first degree will not be asked for by the state, but only murder in the second degree or manslaughter. Gudger, Solicitor." Whereupon the prisoner, by his attorney, Mr. Zachary, moved for his discharge upon the ground that the order of the solicitor was equivalent to a nol. pros. of the charge of murder in the first degree, and, that being so, he was entitled to his discharge. The motion was refused, and the prisoner excepted and the trial was proceeded with. This exception has been virtually disposed of in the case of State v. Hunt (at last term) 128 N.C. 584, 38 S.E. 473. In that case the solicitor in a more informal manner than the solicitor did in this case, before the commencement of the trial, said he would not ask for a verdict of murder in the first degree, and the trial was then proceeded with; and in selecting the jury the prisoner demanded the right to challenge 23 jurors. This demand was denied; the court stating that, the solicitor having stated that he would not ask a verdict for murder in the first degree, the court would treat it as a nol. pros. as to that offense, and would so charge the jury, and, so treating it, the prisoner was not on trial for his life. The prisoner in that case was convicted of manslaughter, and appealed upon the ground that he was not allowed 23 peremptory challenges. This court sustained the ruling of the judge in that case upon the ground that, although the charges of murder in the first degree and in the second degree and manslaughter were all in the same bill of indictment, and in one count, this was specially provided for in the Acts of 1893, c. 85; that the offenses were distinct, and it was as if they had been charged in separate counts. The case of State v. Hunt is the same in principle, and this case must be controlled by it. There was no error in refusing the motion.

During the progress of the trial there were several exceptions taken by the prisoner to the ruling of the court upon questions of evidence. We have examined them all, and find them to...