State v. Dick

• Decision Date: 31 December 1864
• Citation: 60 N.C. 440,2 Win. 45,86 Am.Dec. 439
• Court: North Carolina Supreme Court
• Parties: THE STATE v. DICK, (A SLAVE.)

2 Win. 45

60 N.C. 440

86 Am.Dec. 439

THE STATE

v.DICK, (A SLAVE.)

Supreme Court of North Carolina.

December Term, 1864.

remark made by a Judge, on the trial of an issue by a jury, from which the jury may infer what his opinion is, as to the sufficiency or sufficiency of the evidence, or any part of it pertinent to the issue, is error--and the error is not corrected by his telling the jury that it is their exclusive province to determine on the sufficiency or insufficiency evidence, and that they are not bound by his opinion in regard thereto.

error to leave to the jury the decision of a fact on which the admissility of evidence depends. But if the party excepting could not possibly be injured by it, it is not a ground for a venire de novo.

?? cases of Ratliff vs. Huntly, 5 Ire., 545, and Monroe vs. Stubbs, 9 Ire., ??5, cited and approved.

This was an appeal from the judgment of HEATH, J., Fall Term m of Iredell Superior Court, 1864.

The prisoner was indicted for arson in burning a barn ??h grain n in it. The State gave evidence tending to have the guilt of the prisoner as charged in the indictment; among other things his confessions, which one Kerr ??ified, were freely and voluntarily made. In the course ??e trial, one Edson testified that the confessions were made for Kerr had represented to the prisoner, that it would for his advantage to confess his guilt, and the prisons counsel moved the Court to withdraw the confessions the consideration of the jury, which the Court read to do, and adjudged that they were freely made as unified to by Kerr; and then remarked to the solicitor, after the other evidence already given in the cause, the solicitor, might withdraw this, if he chose so to The solicitor declined doing so.

The Judge charged the jury that there was evidence tending to show the prisoner's guilt, besides his confessions; and as to them, he instructed the jury that if they believed Kerr, they were to be received, and such credit given to them, in whole or in part, as they might think proper; but if they believed Edson they should discard all the evidence about the confessions, and try the prisons on the other evidence. He further told them “that they were the judges of the facts, as he was of the law, and nothing was to be inferred as to prisoner's guilt because of any remark made by him; they were as independent of him, as to the facts, as he was of them as to the law that it was his right and duty to say, whether there was evidence tending to show that the prisoner was guilty and theirs to pass upon it, and weigh it, and say whether it was strong enough to convict him.”

The jury found the prisoner guilty, and from the judgement, according to the verdict, the prisoner appealed.

Attorney General for the State.

No counsel for the prisoner in this Court.

MANLY, J.

In looking into the record in this case two errors appear to have been committed on the trial, for one of which, at any rate, the prisoner is entitled to a veni de novo.

On the trial a question arose as to the withdrawal certain confessions of the prisoner. The Court decline withdrawing them, but remarked to the Solicitor for the State, that, after the other evidence already given the cause, he, the Solicitor, might withdraw them if chose to do so, which the Solicitor declined. This seen to us to be an expression of opinion, on the part of the Judge, that the case was sufficiently proved without the said of the confessions. This is not directly asserted, but this a matter of inference plainly from the manner in which the expedient of withdrawing the testimony is suggested. “After the other evidence, already given in the cause, the Solicitor might withdraw,” &c. The sense which we attribute to this language is that which His Honor himself seems to have ascribed to it; for he takes pains to explain to the jury, that they were not bound by any opinion or judgment of his as to the facts. He endeavored to obviate the effect of his opinion by announcing, in distinct terms, the jury's independency of him in all matters of fact pertaining to the issue; but this it was not practible for him to do. The opinion had been expressed, and was incapable of being recalled.

The statute declares that “no Judge in delivering a charge to the...