State v. Coley

• Citation: 114 N.C. 879,19 S.E. 705
• Court: United States State Supreme Court of North Carolina
• Decision Date: 21 May 1894
• Parties: STATE v. COLEY et al.

19 S.E. 705

114 N.C. 879

STATE

v.COLEY et al.

Supreme Court of North Carolina.

May 21, 1894.

Homicide—Degree—Character—Insanity—Evidence.

1. A witness cannot testify as to character till he qualifies by stating that he knows the general reputation of the person in question.

2. Act 1893, changing the degrees of homicide, does not apply to homicides committed before its passage; the purpose that the common law should apply to them being clearly expressed.

3. Where one of two persons engaged in an affray with one who is unarmed holds him on the ground while the other procures an axe, with which he crushes his skull, there is no occasion for instructions as to killing in the heat of passion engendered in an encounter.

4. Insanity cannot be shown by general reputation.

5. Defendant cannot complain that the court, in his absence, asked the jury if they desired any further instructions, none having been given when he was not present.

Appeal from superior court, Franklin county; Bynum, Judge.

Calvin Coley and Thomas Coley were convicted of murder, and appeal. Affirmed.

P. S. Spruill, for appellants.

The Attorney General, for the State.

AVERY, J. No principle of evidence is more clearly settled in North Carolina, nor by a longer line of decisions, than that a witness will not be allowed to testify as to character until he shall have first qualified himself by stating that he knows the general reputation of the person in question. State v. Wheeler, 104 N. C. 893, 10 S. E. 491; State v. Gee, 92 N. C. 756; State v. Perkins, 60 X. C. 126; State v. Parks, 3 Ired. 296. This the witness failed to do, and the objection to the proposed testimony as to character was properly sustained.

There was no error in the refusal of the court either to instruct the jury that they could return a verdict of murder in the second degree (under the act of 1893), or that it was in their power to return a verdict for a less offense than murder. It is settled beyond all room for dispute that the legislatures in the act repealing a law, may, by a saving clause, retain the provisions of the existing law in force as to all crimes committed prior to its passage. State v. Halford, 104 N. C. 874, 10 S. E. 524. The controversies that have heretofore provoked discussion have arisen upon the question whether particular language could be construed a, s implying a legislative intent to limit the operation of an act to offenses committed after its passage, and leave the pre-existing law in force as to those previously committed. State v. Massey, 103 N. C. 356, 9 S. E. 632; State v. Long, 78 N. C. 571; State v. Williams, 97 IV. C. 455, 2 S. E. 55; State v. Putney, Phil 543. As the purpose that the act of 1803.should operate prospectively, and that the common law should remain in force as to homicides committed prior to

its passage, is expressed in unequivocal terms in the proviso to the act, we think that the question whether the offense with which the prisoners are charged should be classified as murder in the.second degree did not arise. The view presented by the testimony of the prisoner Calvin Coley is that, most favorable to the defense, and, though he stated that there...