State v. Duncan
| Decision Date | 31 December 1845 |
| Citation | 6 Ired. 98,28 N.C. 98 |
| Parties | STATE v. BENJAMIN DUNCAN. |
| Court | North Carolina Supreme Court |
On the application of a prisoner to remove or continue his case, the discretion to do either rests with the Judge of the Superior Court, and cannot be reviewed in this tribunal.
A witness for the State, on the trial of an accessory before the fact, in a capital case, being asked by the defendant whether he had stated, before the examining magistrate, certain facts he was then narrating, replied that he had not, having been deterred by the threats of the principal, and was proceeding to state the conversation between himself and the principal, when the defendant objected to this evidence. Held, that the evidence was admissible.
Where a principal and an accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on the trial of the accessory, unless judgment has been first rendered against the principal.
The cases of the State v. Chittem, 2 Dev. 49, and the State v. Smith, 2 Ired. 402, cited and approved.
Appeal from the Superior Court of Law of Iredell County, at the Fall Term, 1845, his Honor Judge PEARSON presiding.
The prisoner was indicted in Wilkes Superior Court, as accessory before the fact, with one Underwood as principal, for the murder of one Peden. After a plea of not guilty by Underwood, the prisoner, Duncan, also pleaded not guilty, and they united in obtaining a removal of the trial to Iredell. When brought to the bar in Iredell, the two stated, that they were ready for trial; but they prayed to be tried separately, and it was allowed by the Court. Underwood was then put on his trial, and found guilty by the jury; and after his conviction, Duncan was put on his trial, and was also found guilty.
At that term of the Court of Iredell, the grand jury was drawn by a boy above the age of ten years; and for that reason, the prisoner, after his conviction, moved for a venire de novo.
After the conviction of Underwood, the prisoner, Duncan, moved that his trial should be removed to some other County, upon an affidavit, in which he stated, that several persons, named therein, had used great exertions to produce a prejudice against him in Iredell, and had succeeded in doing it, by certain means specified in the affidavit. The Court refused the motion.
The prisoner then moved, on his affidavit, for a continuance, for the want of a witness, who had been summoned and was absent; whose absence, the prisoner, as he swore, did not know, when he said that he was ready for trial. The Court refused this motion also.
On the trial of Duncan, the State offered, in evidence, the conviction of Underwood on the same indictment. It was objected to by the Counsel for the prisoner, because judgment had not then been given on the verdict; but it was admitted by the Court.
The prisoner then controverted the propriety of the conviction of Underwood, and examined witnesses upon the point. The State then produced witnesses, who proved facts tending to establish Underwood's guilt, and that Duncan hired him to commit the murder. Among them was one, who swore, that about a month before Peden was killed, he heard Duncan say to Underwood, that he would kill Peden, or have him killed, for preventing him from obtaining a certificate of bankruptcy; and that Underwood replied, that he wished Peden was in hell, for he was breaking up all the poor people, and had denied a debt of $100 he owed him; and that Duncan then said to Underwood--“I will give you $250 and my roan mare, if you will kill him.” On cross-examination, the witness was asked if he had told all this, when he was examined before the magistrate who committed Underwood and Duncan; and he replied, that he had not, because he was afraid of Underwood, who had threatened him. The prisoner's Counsel then objected to his stating what Underwood said to him. But the Court allowed him to proceed; and he stated that, in the evening after Peden was killed, Underwood told him that he expected to be taken up for it, and he wished him, the witness, not to tell what he knew; and said that, if he did, he would kill him, for the jail was not sufficient to hold him, and when he got out he would kill him. For that reason, the witness said he did not tell the whole to the magistrate; but, when he was subsequently before the grand jury, which was after the prisoner had been confined in the jail several months, he told all he knew, as he then told it in Court.
The prisoner's Counsel insisted before the jury, amongst other things, that if Underwood killed Peden, he did it of his own malice, which rebutted any presumption that he did it at the instigation of Duncan. As to that, the Court instructed the jury, that, although Underwood might have a grudge of his own against Peden, which might have rendered it easier to operate on him, yet, if they were satisfied that Duncan had hired, incited, and procured him to commit the murder, he, Duncan, was accessory before the fact.
After the verdicts against both, the Court proceeded, first to pass sentence of death on Underwood, and then on Duncan. From the sentence against him, Underwood appealed to this Court, and at the present term the Court has adjudged that there was no error therein. Duncan, also, at the same time appealed from the judgment against him.
Attorney General and Boyden, for the State .
Guion and Miller, for the defendant .
The points, raised by the exceptions, appear to the Court to be all clearly against the prisoner, except that upon the admission of the conviction of Underwood before judgment.
The objection, founded on the manner of drawing the Grand Jury, has been disposed of in the case of Underwood, who also insisted on that matter. It might have been a cause of challenge; but after having been waived and the petit jurors accepted by the prisoner, he cannot urge it as an error, for which he can claim a venire de novo.
The refusals to remove the trial a second time, and to continue the case, are decisions in the discretion of the Superior Court upon the matter of fact, which, it has been often held, this Court cannot review. The Act of 1808, Rev. St. c. 31, s. 120, requires the affidavit to “set forth the facts whereon the deponent founds the belief, that justice cannot be obtained,” and expressly states the reason therefor to be, “that the Judge may decide upon such facts, whether the belief is well grounded.”
It was proper to allow the witness to state what Underwood told him, for two reasons. If, as the declarations of Underwood, they would not have been competent original evidence against the prisoner, yet the witness had a right to explain his reason for not giving the whole truth in evidence, upon the occasion to which the prisoner's counsel referred. The interrogatory was meant to draw out an answer to the discredit of the witness, by showing that he had committed perjury, and he had a right to palliate his conduct, as far as he could, by showing that he acted under a species of duress--the fear of losing his life. Besides, it is now settled, that the accessory may controvert the propriety of the principal's conviction by the testimony of witnesses: McDaniel's case, Fost. C. L. 121, 365. Smith's case, 1 Leach. 288, and in this case the prisoner did so. That necessarily opened the case to evidence on the other side, of the principal's guilt; and to that point, any evidence must be admissible, which would be against the principal, were he on his trial. State v. Chittem, 2 Dev. 49.
There cannot be a doubt, that, however much inclined Underwood might have been, of...
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