State v. Cheek

• Decision Date: 31 December 1851
• Citation: 13 Ired. 114,35 N.C. 114
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JOAB B. CHEEK

13 Ired. 114

35 N.C. 114

THE STATE

v.JOAB B. CHEEK

Supreme Court of North Carolina.

December Term, 1851.

A witness may refresh his memory, by looking at a book of entries, kept by himself, without producing the book on the trial.

To receive in evidence, under our Statute, a certified copy from the Secretary of State, of an Act of Assembly of another State, it is sufficient that the seal of the State be attached to the certificate, required from the Governor. It is not necessary that it should be attached to the Secretary's certificate.

A transcript of a Statute, once duly certified by the Secretary of State, in the manner prescribed by our law, is evidence, at all times, of its being in force, according to its terms, unless a repeal be shown.

Evidence is admissible, as to the genuineness of a bank note, of the opinion, not only of cashiers and tellers of banks, but, also, of merchants, brokers, and others, who habitually receive and pass the notes of a bank for a long course of time, so as to become thoroughly acquainted with them, and able to judge between a true and a counterfeit bill, and have that knowledge, among other things, tested by the fact, that no bill, passed by the witness, has been returned, though there has been ample time for it, if any of them were not genuine.

There can be no accessories in inferior offences; but whatsoever will make a man an accessory before the fact in felony, will make him a principal in trespass and other misdemeanors, as in battery and forgery at common law. Procurers and aiders, therefore, in such cases, are principals, and may be so charged in an indictment.

The cases of the State v Jackson, 2 Dev. 563, State v Candler, 3 Hawks 393, State v Harris, 5 Ire. 287, and State v Barden, 1 Dev. 518, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Fall Term, 1851, his Honor Judge ELLIS, presiding.

The prisoner was indicted with Aaron Malone and Robert George, a free negro, for passing to one Berry Davidson a counterfeit note, purporting to be a note for $20, issued by the Bank of Georgetown, in South Carolina. One count charged, in the usual form under the statute, that all three of them passed the note; and a second, that Malone passed it, and that George and Cheek incited and procured him to pass it. They were tried together and found guilty generally, and Malone and George submitted to the sentence pronounced, but Cheek appealed to this Court. The bill of exceptions states the case to the effect following:

One Seymore was produced as a witness on the part of the State, and swore, that he kept a shop, in which he retailed spirits, on a high road in Chatham, leading to Fayetteville, and that in the evening of a day in March, 1850, the prosecutor, Davidson, with one Stout, stopped for the night with their waggons on the road about 250 yards from his house: that the same evening the three prisoners came in company to his house, and said, they had been working in the employment of one McCullock, a contractor engaged in the improvement of Deep River under the Navigation Company, and they asked for some liquor and to stay all night: that the witness got the liquor for them, when one of the company said, they had no small change, and George, after holding a conversation with the other two in a low tone at the door, came to the witness and offered him a $20 bill of the Bank of Georgetown, which he refused to take, telling George that he was not a judge of South Carolina Bank Notes, but he did not think that was good: and that thereupon George went back to the other prisoners, and soon returned to him with a peice of silver change, with which he paid for the liquor; and the three drank it between them: that they soon got some more spirits, for which they gave him a knife; and that they retired, soon afterwards, to the room in which they were to sleep: that the prisoner, Cheek, was then drunk, and soon fell asleep on the bed, and Malone and George left the house together; and, after some absence, they returned and awoke Cheek, and held a conversation with him in a whisper, and then Cheek got up and went away with George, and they did not return. This witness further stated, that Malone and George claimed the note, and that he did not know that Cheek saw it.

Davidson deposed, that, after he and Stout had encamped, as before mentioned, the prisoner, George, came to the camp and said he was free, and named John George, and he soon proposed to buy a watch, which he saw the witness wearing, and that he refused to trade with the prisoner because he was a negro: that George then said, he would go and get his young boss to make a trade, and he went away, but in a short time returned with the prisoner, Malone, who said his name was James Johnson, and proposed to buy the watch: that they bargained for the watch at $13, and Malone offered in payment the note of the Bank of Georgetown for $20, set forth in the indictment, saying that he and George were both interested in it; and upon being asked whether it was good, he said it was, and that they had received it from McCullock, the contractor on Deep River, where they had been at work; and thereupon the witness delivered the watch and received the note: that the witness paid Malone one dollar, but could not make change for the other six, and it was agreed that he should leave that sum next day with a man in Haywood; and Malone and George then went away: that, in about half an hour, the prisoner, Cheek, (who, like the other two, was unknown to the witness,) came to the camp with George, and had the watch with him, and said his name was Brooks, and that he had advanced the money to Malone for the $6, which the witness owed him, and that, as the witness was a stranger, he would take $5, if he would pay it at that time; and the witness borrowed $6 from Stout, and paid that sum to Cheek, who then went away with George: that Cheek did not see the $20 note in his possession, nor did he claim an interest in it.

One Harris deposed, that, about an hour before daybreak the next morning, Cheek and George came to his house, which was in the same neighborhood, and stated that they were on their way from the Deep River works, and had lost their road: that Cheek was then drunk, and said his name was Brooks, and that he was the son of one Thomas Brooks.

One McCulloch deposed, that he was a superintendent for the contractors at Buckhorn Falls, on Deep River, and paid all the money expended there: that the prisoners worked under him in February or March, 1850, and that he paid to each of the white men $3, and to the negro $1; and that he did not let either of them have a $20 note.--The witness was then asked, if he kept an account of his expenditures, and had refreshed his memory by referring to his books; and he replied, that he kept books, and had refreshed his memory by referring to them. Thereupon, the counsel for the prisoners objected to the competency of his testimony; but the Court received it.

On the part of the State there was...