State v. Dove

• Decision Date: 31 December 1849
• Citation: 10 Ired. 469,32 N.C. 469
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JACOB DOVE.

10 Ired. 469

32 N.C. 469

THE STATE

v.JACOB DOVE.

Supreme Court of North Carolina.

December Term, 1849.

On the trial of an indictment for murder, where it is alleged for error that the Court improperly over-ruled a challenge of the prisoner to one of the jurors, the record must shew for what cause the challenge was made; otherwise the Supreme Court cannot say, whether there was error or not.

Where a juror, upon being challenged, swears that he has formed and expressed an opinion, but only upon rumor, but that he could do impartial justice, upon hearing the evidence in the case; prima facie the juror is competent; though in some cases the Court or the triers may find otherwise.

Where a witness is impeached on the ground of bad character, evidence may be given of previous statements made by the witness, consistent with his testimony on the trial??

Although an impeaching witness may be examined as to the general moral character of the witness impeached, and also as to his character for truth when on oath, and when not on oath, it is not necessary to put these questions in any particular order.

The cases of the State v. Benton, 2 Dev. & Bat. 196, State v. Ellington, 7 Ire. 61, State v. George, 8 Ire. 324, and State v. Boswell, 2 Dev. 209, cited and approved.

Appeal from the Superior Court of Law of Rowan County, at the Fall Term 1849, his Honor Judge CALDWELL presiding.

The prisoner was indicted for murder. The case stated in the record is as follows: “In forming the jury, two persons were offered as jurors and challenged for cause: On being asked, whether they had formed and expressed the opinion, that the prisoner was guilty, they answered, they had--whereupon they were asked by the Court, upon what ground they had formed that opinion, and they answered, that it was formed from report. They were then asked by the Court, whether their opinion was so fixed and made up in their mind, that they could not do impartial justice between the prisoner and the State; and each replied, that it was not so fixed and made up as to prevent his doing justice between the prisoner and the State: They were then ordered to be tendered to the prisoner, and he challenged them peremptorily, and in like manner he challenged thirty-three others before a jury was formed.”

One Stairns was examined as a witness for the State, and he testified to the facts of the murder and other circumstances. Evidence was given on the part of the prisoner, impeaching the general character of Stairns. On the part of the State evidence was then offered, that, on the evening after the homicide and the next morning, he, Stairns, gave the same statement of the facts, as that he gave on the trial; and the Court received the evidence, after objection for the prisoner.

On the part of the prisoner it was then proposed further to prove, that Stairns was a man of bad moral character and reputed to be dishonest; and, in order to do so, the counsel for the prisoner asked a witness (who had said that he knew the general character of Stairns) “what was his character for honesty;” and thereupon the presiding Judge stated to the counsel, that he understood the Supreme Court to have ruled, that an impeaching witness, after stating his knowledge of the general character of the first witness, must then be examined, as to his general character for truth when on oath, and when not on oath, and then as to his general character for honesty and morals, and his Honor required the counsel to put all those questions to the witness, but allowed him to do so in such order as he should choose. But the counsel declined to enquire as to the character of Stairns for truth when on oath, and therefore refused to examine the witness further.

The prisoner was convicted, and after sentence he appealed.

Attorney General, for the State .

Boyden, for the defendant .

RUEFIN, C. J.

Strictly speaking, a venire de novo could not be awarded on the point respecting the jurors, had the decision on it been erroneous, inasmuch as the prisoner's exception does not state, that the challenge was made by him, nor assign any cause for it. In Benton's case, 2 Dev. & Bat. 196, although the juror said, he had made up and expressed an opinion as to the guilt or innocence of the prisoner, and although there was every inference, that it was unfavorable to the prisoner, from...