State v. Collins

• Decision Date: 30 June 1831
• Citation: 14 N.C. 117
• Court: North Carolina Supreme Court
• Parties: THE STATE v. BENJAMIN COLLINS.

14 N.C. 117

THE STATE

v.BENJAMIN COLLINS.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM. 1831

1. Where a cause is removed from one Superior Court to another, the latter has the right to issue a writ of certiorari to the former, directing a more perfect transcript to be certified.

2. Evidence that the prosecutor was actuated by malicious motives in preferring an indictment is inadmissible, unless he is examined for the State.

3. Where the defendant in an indictment for petit larceny offers no evidence of character, the jury are to weigh the testimony as if they knew nothing against him, except what was disclosed on the trial.

4. The right of issuing writs of certiorari is not founded on the circumstance that the court from which it issues is superior to that to which it is directed; but upon the principle that all courts have the right to issue any writ necessary to the exercise of their powers.

5. Where, upon the removal of a cause, two contradictory copies of a record are certified, the contradiction can be reconciled by an inspection of the original record, by the court to which it is removed.

6. But where the transcripts are not contradictory, they form but one copy, and both may be used by the court.

7. An endorsement by the foreman of the grand jury of the initial letter of his first name, where the record of his appointment states his name at length, is not a material variance.

8. Writs, which give jurisdiction to a court, must be returned; and both the writ and the return must appear upon the record; but this is unnecessary where the writ was issued in the progress of a cause, and is merely auxiliary to its determination. A writ of certiorari, to certify a more perfect record, is of this latter description.

The defendant was indicted for petit larceny, at JONES, on the spring circuit of 1828. After not guilty pleaded, the cause was removed, upon

the affidavit of the defendant, to Lenoir, and was there tried on the last fall circuit, before his Honor, Donnell, J.

On the trial evidence was offered by the defendant that the prosecutor was actuated by malicious motives in preferring the prosecution, but his Honor rejected the testimony, because it was irrelevant, as the prosecutor was not offered or examined as a witness in support ofthe prosecution.

In arguing to the jury, the defendant's counsel insisted that if the evidence was not of weight sufficient to induce them to find a verdict against the most respectable man of their acquaintance (and the counsel designated a very respectable gentleman known to all the jury, and then in the courthouse), they would not, in law, be justified in finding a verdict upon the same testimony against the defendant.

In summing up, his Honor informed the jury that the case supposed by the defendant's counsel might mislead them. That the defendant not having introduced evidence of his character, the true rule was, that if the evidence would not justify them in returning a verdict against a person of whom they had never before heard, and of whom they knew nothing but what was disclosed by the testimony, then it would not justify a verdict against the defendant. But it did not follow that if they thought the evidence insufficient against a gentleman who brought with him the weight of character they might attach to the very respectable individual designated by the counsel, that it was insufficient against the defendant.

The jury returned a verdict of guilty, and the defendant obtained a rule for a new trial, because the judge rejected the testimony offered by the defendant, and because of error in his instruction to the jury. The rule was discharged. Upon inspecting the transcript of the record of Jones Court, it was found defective in the following particulars:

1. It stated the Superior Court of Jones to have commenced on Wednesday, the ...... day of March, 1828.

2. O. B. Coxe appeared upon the transcript to have been appointed foreman of the grand jury, but his endorsement on the bill was signed O. W. B. Coxe.

3. The entry of the order of the removal to Lenoir was made in these words: "Sent to Lenoir."

4. The certificate of the clerk of Jones Court stated it to be acause in which R. K. is prosecutor, and Benjamin Collins, defendant.

For these causes, his Honor declined passing sentence, but directed a writ of certiorari to issue to the clerk of the Superior Court of Jones, "ordering him to certify a more full and perfect transcript of the record of the cause in his office."

The record certified to this Court stated, that "in obedience to the certiorari, issued in pursuance of the order of the preceding term, the clerk of the Superior Court of Law of Jones County returned here into court the following transcript." This transcript corrected the defects above specified as existing in the one first certified, as is stated by his Honor, the Chief Justice, in pronouncing the judgment of this Court.

Upon the return of this writ, his Honor, Strange, J., passed sentence on the prisoner, who appealed.

Neither the writ of certiorari nor the return on it were incorporated in the record transmitted to this Court.

HENDERSON, C. J. It is objected, first, that the Superior Court of Lenoir could not issue a certiorari to the Superior Court of Jones to certify to the former a record of the latter court, because they are courts of coordinate powers; that such writ, from its nature, can only issue from a superior to an inferior court. It is true that this is the practical application of the power to issue the writ in most cases, because most commonly the records of an inferior court are required in the Superior Court, for purposes pointed out by law; the latter court having the power of examining and reviewing the proceedings of the inferior court, by way of appeal or writ of error. But the power to issue the...