State v. Cowan

• Decision Date: 30 June 1847
• Citation: 7 Ired. 239,29 N.C. 239
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JOHN COWAN.

7 Ired. 239

29 N.C. 239

THE STATE

v.JOHN COWAN.

Supreme Court of North Carolina.

June Term, 1847.

It is sufficient to admit a witness to prove a conversation of the defendant, when he says he can state all that passed on the occasion, when that conversation occurred, whether relative to that controversy or any other subject. It is not necessary for him to be able to state all the conversations of the defendant, which he heard before or after the conversation offered to be given in evidence.

A defendant, in his exception, must shew some error to his prejudice; otherwise this Court will not set aside the verdict of the jury.

When a magistrate, on the examination of a prisoner, accused of robbing an individual of a watch on the previous night and on whom the watch was found, told him “that unless he could account for the manner, in which he become possessed of the watch, he should be obliged to commit him, to be tried for stealing it,” this did not amount to such a threat or influence as would prevent the introduction of the subsequent confession of the accused, especially as the magistrate repeatedly warned him not to commit himself by any confession.

A prisoner may be convicted, upon his own voluntary and unbiassed confession, without any other evidence.

If an indictment for robbing, under the Statute, charges that the robbery was in the highway, the State cannot give in evidence that it was near the highway.

A wharf, simply as such and not being part of a street, is not a public highway.

An indictment for highway robbery, which charges that the property was taken from the person and against the will of the owner, feloniously and violently, is sufficient.

Appeal from the Superior Court of Law of New Hanover County, at the Spring Term, 1847, his Honor Judge BATTLE, presiding.

The defendant was indicted for high-way robbery. On the trial, a witness, named Hall, was introduced to prove a conversation, which he heard between Cowan and Price, who were confined in jail for the same offence. The prisoners were in different cells, but could converse through a sink, which passed under both cells. The witness was asked if he could state all the conversation which passed between the prisoners, to which he replied that he could not, that he could only state what had been said by one to the other on a particular occasion. This was objected to by the prisoner's counsel, but admitted by the Court.

The principal testimony relied upon by the Solicitor for the State, for the conviction of the prisoner, was his own confession. As to that, Mr. James T. Miller testified, that he was one of the Magistrates, before whom the prisoner was examined previous to his commitment for trial: that after he had closed the examination, Mr. G. W. Davis, the British Vice Counsel, who was present, asked of the prisoner one question, what, the witness did not recollect, but it was one, which he supposed might induce the prisoner to say something prejudicial to his cause, and he immediately cautioned him against making any confession, telling him, that he was not bound to do so, and that if he did make any confession, it might be used against him.

Mr. G. W. Davis testified, that he did not recollect asking any question of the prisoner, and he thought Mr. Miller was mistaken in thinking that he did so. He stated that after the watch, which it was alleged had been taken from Captain Rodney the night before, was proved to have been in the possession of the prisoner, Mr. Miller told him, that unless he could account for the manner in which he became possessed of it, he should be obliged to commit him to jail to stand his trial for stealing it; that the prisoner stated that he was anxious to sleep on board a vessel, which was about to sail, and then commenced stating how he got the watch, when he was cautioned by Mr. Miller not to make any confession, as it might be used against him, but he declared that he would tell all about it. Under these circumstances the prisoner's counsel contended, that his confession was inadmissible, because it was not free and voluntary, but obtained either by the question put to him by Mr. Davis, who it was alleged had an influence over the prisoner, who was a sailor, on account of his, Mr. Davis' official station, or by the remarks of Mr. Miller, the Magistrate, that, if he did not account for the manner in which he got the watch, he must be committed to jail.

The Court deemed the confession admissible; whereupon the witnesses stated that the prisoner confessed, that he had knocked Captain Rodney down and taken his watch from him, and that the watch then produced, which Captain Rodney claimed as his, was the one which he took. Mr. Miller stated that his impression was, that the prisoner stated that this took place in the street, but he was not entirely certain, but that it was on the wharf. Mr. Davis stated that he understood the prisoner to say, that Captain Rodney was near a gate, when he knocked him down, and that, in taking his watch, he broke the guard and buried it in the street, near the body of Captain Rodney. It was proved and not disputed, that Captain Rodney was badly wounded on that night, having received several severe cuts and bruises on his head and face. It was also proved, that the wharf, near where the robbery was alleged to have been committed, was used by the public, and was not in any manner enclosed, though some wharves below there were private property. The witnesses, Miller and Davis, stated, before testifying as to the prisoner's confession, that they believed they could give the substance of all that the prisoner confessed.

The Court in the charge to the jury, after calling their attention to an alleged discrepancy in the testimony of the witnesses Miller, and Davis, with remarks thereon, told them that the prisoner's confession alone, if believed by them to be true, would justify them in returning a verdict of guilty, and much more would they be justified in rendering such a verdict, if they found the confessions or any material part of them corroborated by other testimony; and that whether the offence was committed in the street or on the wharf, it was highway robbery.

The prisoner was convicted, and his counsel moved for a new trial.

1st. Because of the admission of the testimony of Hall.

2nd. Because of the admission of the confessions of the prisoner.

3rd. Because the Court charged that the confessions alone would, if believed, justify a conviction, it being contended that the corpus deliciti ought to be proved by testimony, independent of the confessions.

4th. Because the Court charged that the wharf was a highway.

The Court overruled the motion and pronounced sentence of death, from which the prisoner appealed to the Supreme Court.

Attorney General, for the State .

Strange, for the defendant .

RUFFIN, C. J.

This Court is of opinion, that neither of the three first objections, taken for the prisoner on his trial, entitles him to a venire de novo.

That to the evidence of the witness Hall, is entirely groundless. It would seem to be sufficient, if a witness, who is called to prove what another said or deposed to on a former occasion, swears that he is able to state all that was said on the subject of controversy, at the time to which his testimony refers. At all events we hold it sufficient to admit a witness, who says, that he can state all that passed on the occasion when that conversation occurred, whether relative to the controversy or any other subject. Such was the state of the facts in this case. The declarations of the prisoner at another time, or his conversations with Price or another person upon a different occasion, were not admissible evidence, whether proved by this or any other witness. Besides, the exception does not set out the testimony given by Hall; and, for ought that we can tell, the declarations proved by him may have been irrelevant, and, so, harmless; or they may have been beneficial to the prisoner. It is necessary, that the appellant should show in his exception some error to his prejudice, otherwise this Court cannot undertake to set aside the solemn verdict of the jury.

We do not see the least ground for saying, that the prisoner's confessions were obtained by any undue means--either threats, or promises, or any other improper influence; but they appear, as far as we are at liberty, or can judge, to have been “free and voluntary,” as the expression of the books is. It is impossible to hold, that the mere presence of a gentleman, holding the respectable station of Vice Consul under a foreign Government, could place the prisoner, while under examination before a Magistrate of this Country, under any inducement, but that of his own will, to make a confession; or that putting a question to him by that gentleman, the nature of which, if put, the witnesses could not state, could have any such effect: and that, the more especially, when the Magistrate, according to his duty and the dictates of humanity, not only once, but twice cautioned the prisoner against making a confession and informed him that, if he did, it might be used against him. It was contended in the argument, however, that the confession was extorted by a threat of the Magistrate himself, in saying to the prisoner, “that unless he could account for the manner in which he became possessed of Rodney's watch, he should be obliged to commit him, to be tried for stealing it.” This was treated as a demand on the prisoner, that he should tell how he came by the watch, under the penalty of imprisonment. But that is doing great violence to the language and purpose of the examining Magistrate. The prisoner was not asked to tell any thing about the matter; but he was required to account for his having the watch, that is, to account for it by proof, and not by any declaration of his own, in order, as...