State v. Davis

• Decision Date: 19 October 1932
• Docket Number: 585.
• Parties: STATE v. DAVIS et al.
• Court: North Carolina Supreme Court

166 S.E. 292

203 N.C. 316

STATE v. DAVIS et al.

No. 585.

Supreme Court of North Carolina

October 19, 1932

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Wallace B. Davis, Luke Lea, and Luke Lea, Jr., were convicted of conspiracy and violations of the banking laws, and after judgments were affirmed on appeal, they made a motion for new trial, which was overruled, and gave notice of appeal. On State's motion to docket and dismiss appeal.

Motion allowed.

Motion by the state to docket and dismiss appeal.

At the July-August special criminal term, 1931, Buncombe superior court, the defendants in the above-entitled cause were tried upon indictments charging them with conspiracy and violations of the banking laws, which resulted in convictions and sentences. From these, the defendants appealed to the Supreme Court. The judgments were affirmed in an opinion filed June 15, 1932. State v. Davis, 203 N.C. 13, 164 S.E. 737.

Immediately thereafter, and before the opinion was certified down, a summary motion was made to review the record and to reconsider the opinion, which was denied June 29. State v. Davis, 203 N.C. 35, 164 S.E. 749. It was suggested in this motion that, if granted another trial, the defendants could refute the state's case, but, in reply, it was said that a defendant, who speculates on the chances of a verdict by remaining silent at the trial and offers no evidence, will not, simply for that reason, be permitted to change his mind after losing, and thus seek to retrieve his supposed error by opportunity of another hearing.

An ex parte application was then made to Hon. P. A. McElroy Resident Judge of the Nineteenth Judicial District, on July 5, 1932, to stay the execution of the judgments pending the hearing of a motion to be lodged at the next succeeding term of Buncombe superior court for a new trial on the grounds of alleged errors committed on the hearing, newly discovered evidence, and jury bias or prejudice. Upon the allegations of the petition, and apparently without notice to the solicitor stay of execution was granted in accordance with the defendants' request.

Briefly the grounds upon which the motion for a new trial was lodged at the July term, 1932, are as follows:

First. That at least four of the jurors were biased and prejudiced against the defendants, by reason of which they were denied their constitutional right to a fair and impartial trial.

Second. That the officer in charge of the jury was hostile to the defendants, especially the defendant Davis, which militated against them on the trial.

Third. That the jurors were allowed to receive visitors, read newspapers, and converse with outsiders, both in Asheville and while on a trip to their homes in Haywood county, to the prejudice of the defendants.

Fourth. That a fair and impartial jury could not be selected from Haywood county on account of the local prejudice in said county against the defendants.

Fifth. That newly discovered evidence has come to the defendants, which, if they had known and offered at the trial, would probably have changed the result.

In support of the alleged newly discovered evidence the defendants offered the affidavits of E. P. Charlet, W. C. Walkup, W. S. Coursey, and Rogers Caldwell, which said affidavits, however, only purported to be in explanation or contradiction of the state's evidence.

An answer to the motion was filed by the solicitor in which it is specifically averred:

First. That the allegations of bias and prejudice on the part of jurors are untrue and denied.

On the other hand, it is alleged, on information and belief, that one Howard Dye, agent of the defendant Luke Lea, during and after the trial, was and has continuously been active in Haywood county trying to secure affidavits from the jurors and others attacking the verdict. It is further alleged, on information and belief coming to the solicitor since the trial, that, during the trial, an effort was made to bribe one of the jurors on behalf of the defendants; and that money has since been offered to some of the jurors by agents of the defendant Luke Lea to induce them to impeach their verdict.

Second. That the alleged hostility of the officer in charge of the jury is untrue and denied.

Third. That the allegation of misconduct on the part of the jury is untrue and denied.

Fourth. That the allegation of local prejudice against the defendants in Haywood county is untrue and denied.

Fifth. That the so-called newly discovered evidence, which at most is only contradictory of the evidence offered by the state on the hearing, purports to come: (1) From E. P. Charlet, one of the defendants, who sat for many weeks throughout the trial, and is associated with the defendant Luke Lea in Tennessee; (2) from Rogers Caldwell, also of Tennessee and closely associated with the said Lea; (3) from W. C. Walkup of Nashville, Tenn., available at all times during the trial and who actually did converse with the defendant Davis about his defense; and (4) from W. S. Coursey, a witness for the state, subject to cross-examination and who was cross-examined by the defendants on the trial.

It is further alleged that, greatly to the surprise of the prosecution, the witness W. S. Coursey, who proposes to oblige the defendants by changing his testimony, or adding thereto, has, since the trial of the cause, moved to the state of Tennessee and is now in the employ of the defendant Luke Lea.

Hon. John H. Clement, who presided at the July term, 1932, Buncombe superior court, found the facts against the defendants, and, in his discretion, overruled their motion for a new trial, from which they gave notice of appeal.

R. R. Williams, of Asheville, for appellant Davis.

Clyde R. Hoey, of Shelby, and L. E. Gwinn, of Memphis, Tenn., for appellants Lea.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

STACY C.J.

A few simple observations will make clear the right of the state to docket and dismiss the attempted appeal in this case:

1. In the first place, it should be remembered that the object of a trial is to ascertain the truth and to do justly. Both parties are privileged to present their evidence at the hearing. This is their opportunity to make the truth appear, and, if not seized, it may be lost. Every litigant is entitled, as a matter of right, to one trial, but not necessarily to two. Pico v. Cohn, 91 Cal. 129, 25 P. 970, 27 P. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159.

However, to make sure that no man shall be deprived of his life, liberty, or property but by the law of the land, and to safeguard against fallibility, not every case has been limited to a single day in court, nor every party to one "bite at the cherry." It is better to be right than to worship blindly at the shrine of form. "There always has been and always will be," to quote a distinguished member of the bar, "an irreconcilable conflict between him who wants to get there right and him who wants to get there quick." The rightites and the quickites will never agree. The golden mean or the medium aureum of Virgil, where the rights of litigants may be preserved without becoming entangled in the net of form, is the quest of the courts.

2. We have held that, as a dernier ressort, in certain cases, upon proper showing, application for new trial on the ground of newly discovered evidence may be made in the superior court at the next succeeding term following affirmance of judgment on appeal. State v. Casey, 201 N.C. 620, 161 S.E. 81; Allen v. Gooding, 174 N.C. 271, 93 S.E. 740. See, also, concurring opinion in State v. Jackson, 199 N.C. 321, 154 S.E. 402.

There is nothing new about this procedure. It was invoked in Black's Case (1892) 111 N.C. 303, 16 S.E. 412, a civil action, and in Starnes' Case (1887) 97 N.C. 423, 2 S.E. 447, a criminal prosecution, forty and forty- five years ago respectively. A striking illustration of its wisdom may be seen in State v. Shipman (N. C.) 166 S.E. 298, this day decided. The authority is not questioned in civil actions, and the courts are empowered by C. S. § 4644, to "grant new trials in criminal cases when the defendant is found guilty, under the same rules and regulations as in civil cases."

It has been thought that, while relentless in their efforts to right the wrongs of others, a fortiori the courts should be slow to abnegate their functions, or to declare the power of the judiciary exhausted, when called upon to right an alleged wrong inflicted by the machinery of the law itself in the administration of justice. It may not be amiss to observe, however, that "such applications are regarded with suspicion and examined with caution, the applicant being required to rebut the presumption that the verdict is correct and that he has not exercised due diligence in preparing for trial." 14 A. & E. Enc. Pl. & Pr. 790; Turner v. Davis, 132 N.C. 187, 43 S.E. 637.

Indeed, it was said in Carson v. Dellinger, 90 N.C. 226, speaking of the former practice when a new trial, as here sought, could be had only by intervention of a court of equity, such relief "was afforded with reluctance and in a narrow range of cases, as in case of fraud (Powell v. Watson, 41 N.C. 94), or where the new evidence is such as in effect to destroy the adversary proof (Houston v. Smith, 41 N.C. 264), or where a false witness, known to be such by the party for whom he testifies, without means of contradiction at the trial, and the witness has been prosecuted for perjury or has escaped beyond the process of law. Dyche v. Patton, 43 N.C. 295, and Id., 56 N.C. 332."

3. We have not held that such application may be made as a matter of course, or for purposes of delay. Carson v. Dellinger supra. It is not to challenge the regularity of...