State v. Duncan

• Decision Date: 30 June 1846
• Citation: State v. Duncan, 6 Ired. 236, 28 N.C. 236 (N.C. 1846)
• Parties: THE STATE v. BENJAMIN DUNCAN.
• Court: North Carolina Supreme Court

6 Ired. 236

28 N.C. 236

THE STATE

v.BENJAMIN DUNCAN.

Supreme Court of North Carolina.

June Term, 1846.

On the trial of one indicted as accessary in the crime of murder, a transcript of the record of the conviction of the principal was received in evidence, it appearing in the transcript that after the conviction of the principal he appealed to the Supreme Court, from which the case was sent back to the Superior Court, but the decision of the Supreme Court not appearing in the transcript. Held, that notwithstanding this omission, and though the decision should properly have been entered on the record, yet the transcript was good evidence against the accessary, for at most the judgment against the principal was only erroneous.

An accessary cannot take advantage of error in the record against the principal, and the attainder of the principal, while unreversed, is prima facie evidence against the accessary of the principal's guilt.

Evldence on the part of a prisoner, indicted as an accessary in murder, that he was a man of violent passions and often in the habit of using threatening language, intended to rebut the presumption arising from his threats against the deceased, is irrelevant and inadmissible.

Threats of other persons against the deceased, or admissions by them that they had killed him, are only hearsay and cannot be received in evidence.

The Court, to which, on the removal of a cause, the transcript of record is sent, is the sole judge whether the transcript is properly verified by the seal of the Court from which it is sent, and all other Courts are bound by its decision.

The words vi et armis in an indictment are now superfluous, and more especially so in an indictment against an accessary, as his offence tends only to a breach of the peace, and is not, of itself, an actual breach of it.

The cases of State v. May, 4 Dev. 328, and State v. Moses, 2 Dev. 452, cited and approved.

Appeal from the Superior Court of Law of Davie County, at the Spring Term, 1846, his Honor Judge CALDWELL presiding.

This was an indictment against the defendant for being an accessory before the fact to the murder of William W. Peden. On this indictment, the defendant was tried and convicted, and sentence of death being passed, he appealed to this Court. The following are the facts upon which the points presented to this Court arose:

One Underwood was indicted in the Superior Court of Wilkes for the murder of one Peden, and the prisoner, Duncan, was charged in the same indictment as accessary to the fact. At their instance the trial was removed to Iredell; and, on separate trials there, they were convicted and sentenced to be hanged, and each appealed. At December term, 1845, it was decided by this Court that the judgment against Underwood was not erroneous, and ordered that the decision should be certified to the Superior Court of Iredell, to the intent that the said Court should proceed to judgment and sentence accordingly. At the same term the judgment against Duncan was held to be erroneous and reversed; and a venire de novo was awarded; and the usual certificate of that decision was also directed. Those cases may be found reported in 6 Iredell, 96 and 98. At the succeeding term of Iredell Court as stated in the record “the said James Underwood being brought to the bar, and being asked if he hath any thing to say, why sentence of death should not be pronounced upon him, and replying thereto that he hath not, the Court doth thereupon, in obedience to the judgment and mandate of the Supreme Court to the Court directed,” &c. proceeding then in the usual form of a sentence of death. There was then a venire de novo awarded as to Duncan; and he obtained an order for the second removal of his trial to Davie. He was again convicted, and, after sentence thereon he appealed to this Court.

On the trial, there was offered in evidence, on behalf of the State, a transcript of the record of the Court of Iredell in the case of Underwood, in order to shew his conviction and the judgment. It was objected to for the prisoner, because it did not appear therein, what decision the Supreme Court had made upon the appeal; and it was insisted, that it should appear in the record, or at least be made to appear by the order from the Supreme Court. On the part of the State the certificate from the Supreme Court to the Court of Iredell was then produced and read; and the Court then allowed the transcript from Iredell to be read also.

On the part of the State it was proved, amongst other things, that the prisoner had threatened to kill Peden, or cause him to be killed. Thereupon the prisoner offered to prove, that it was his habit when in a passion, to use violent and threatening language towards others: which, being objected to on the part of the State, the Court refused.

The prisoner offered further to prove, that certain other persons harbored ill-will against Peden and had threatened him; and also that certain others had been suspected and arrested upon a charge of having murdered him. This evidence was also rejected.

Attorney General for the State .

No Counsel in this Court for the defendant.

RUFFIN, C. J.

The Court is of opinion, that the transcript from Iredell was proper evidence of the judgment on Underwood, as principal in the felony. It would have been right...