State v. George

• Citation: 29 N.C. 321,7 Ired. 321
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1847
• Parties: THE STATE v. GEORGE, A SLAVE.

7 Ired. 321

29 N.C. 321

THE STATE

v.GEORGE, A SLAVE.

Supreme Court of North Carolina.

June Term, 1847.

The acts and declarations of an accomplice are evidence when they are part of the res gesta, and done in furtherance of the common design.

But to make the acts or declarations of another, evidence against a prisoner, a conspiracy or common design between them must be established.

Appeal from the Superior Court of Law of Granville County, at the Spring Term, 1847, his Honor Judge MANLY presiding.

The prisoner was separately tried upon an indictment, in which he was charged as principal, and Mary Meadows as accessary before the fact, with the murder of James Meadows. In the course of the trial, a witness for the State, having been examined as to some other matter, was then interrogated by the Solicitor for the State, as to the acts and declarations of Mary Meadows, tending to show hostility to her husband, and an intention to cause some great bodily injury to be inflicted upon him. This was objected to by the prisoner's counsel, but the Solicitor stating at the same time, that he then intended to call witnesses to prove a conspiracy between Mary Meadows and the prisoner, it was admitted by the Court.

Evidence was then introduced to shew a guilty connexion between the prisoner and Mary Meadows, which it is not thought necessary to repeat.

In another, and subsequent stage of the cause, after a recess, and before re-commencing the examination of witnesses, the prisoner's counsel, addressing the Court, remarked, they supposed it was unnecessary to repeat the objection already made, to evidence. To which the Court replied, it was deemed unnecessary; that objection would be considered as made to all testimony of the same kind. If they desired, however, to make a point as to the admissibility of other evidence upon other grounds, it ought to be mentioned.

No exception is taken to the instructions given to the jury. There was a rule for a new trial, on account of improper testimony. Rule discharged. Judgment and appeal.

Attorney General, for the State .

Badger, E. G. Reade, and Gilliam, for the defendant .

NASH, J.

The prisoner is indicted, together with Mary Meadows, for the murder of James Meadows, her husband, the first as principal, and the second as accessary before the fact. The prisoner was tried alone. On the trial a witness was called to state, “acts and declarations of Mary Meadows, tending to show hostility to her husband, and an intention to cause some great bodily injury to be inflicted on him.” Objection being made, on behalf of the prisoner, the prosecuting officer stated, he intended to introduce witnesses to prove a conspiracy between the prisoner and Mary Meadows. The evidence was admitted by the Court. What these acts were, or what were the declarations of Mary Meadows, the case does not inform us, any further, than that they tended to show, the state of her feelings towards the deceased. An accomplice is certainly a competent witness, either for or against a partner in the perpetration of the offence, if he be not a party to the record; and if he be, his declarations will be heard, under certain restrictions. A simple bald declaration will not be received, unless it be, in itself, an act; as in treason, to make it evidence, it be accompanied by an act, of which it is explanatory; for which act, his accomplices are responsible; and the declaration must be a part of the res gesta, and be done in furtherance of the common design. The American Fur Company v. United States, 2d Peters 364. Gooding's case, 12 Whe. 460, 1 Phil. on Ev. 414, 4th, Haw. P. C. Book 2nd, ch. 46, sec. 34. Cabiness v. Martin and others, 4 Dev. 110. 1 st Greenleaf's Ev. 345. State v. Poll. & Lavinia, 4th Haw. The declarations and acts of Mary Meadows had none of the qualities, rendering them evidence against the prisoner. The acts, as far as the case discloses, were not such as he was answerable for, nor were they done in furtherance of the common design, to wit: to murder James Meadows. They were descriptive, simply and entirely, of her feelings towards her husband, without pointing in the most remote manner to the prisoner. For this reason, if there was no other, I should send the case back to another jury.

But there is another, and still more formidable objection to the sustaining of the verdict, in this case. The prosecuting officer, when he offered in evidence these acts and declarations of Mary Meadows, was sensible, that, at that state of the case, they were not admissible; to make them so, he declared his intention to prove a conspiracy, and it is to be presumed, such a conspiracy, as would authorise their introduction. The prisoner was on trial for the murder of James Meadows, and the conspiracy to be proved, was one to effect that crime; and so the Court must have understood it. Does the case show, that any conspiracy was proved? It states, “that evidence was then introduced, to show a guilty connexion, and that it was not thought necessary to go into particulars.” It appears, that, after the introduction of this testimony, the Court took a recess, and upon resuming the trial, the prisoner's counsel renewed his motion; or, rather, informed the Court, that he had not abandoned it, and the evidence was not withdrawn from the jury. Whatever doubt might rest upon the admissibility of the acts and declarations of Mary Meadows, as proved, coupled with evidence of a conspiracy, to my mind it is perfectly clear, that, as the case appears here, they were not admissible. The words, ““guilty connexion,” have no definite meaning, as descriptive of any particular offence. The combination of a parcel of smugglers is a guilty connexion; so, to rob, or to commit an assault or battery, or to strike for higher wages, all these, are guilty connexions, punishable by law. But the words, in common parlance, when applied to a man and woman, mean a carnal connexion. If A. charge B. a woman, with having a guilty connexion with C. ninety-nine men, out of every hundred, will understand it, as a charge of incontinence on the part of B. And if the words were introduced into a declaration for slander, with proper averments, no jury would hesitate to hold them slanderous. And we are required to hold that these vague expressions show, that a conspiracy to murder James Meadows existed between the prisoner and Mary Meadows, for it is the only ground upon which her acts and declarations were, or could be, held admissible. It is precisely, as if the State, after promising to prove the existence of a conspiracy, had offered no evidence of it. In such a case, it cannot be denied, that the admission of the declarations would be illegal and erroneous. The State did not redeem its pledge; it did not prove a conspiracy, of any kind, and there was error in the admission of the declarations of Mary Meadows. It is, however, objected, that the prisoner cannot now avail himself of the objection, as he has not put it into his bill of exceptions. This is a Court of errors, and the proper way to bring cases here for our consideration, is by a bill of exceptions; but for the convenience of all parties, the statement of the case, under the sanction of the Court, is received in the place of a bill; and it is true, we can take no notice of any objection, which is not stated in the case, or does not appear upon the record, properly so called. The prisoner's objection does appear upon the face of the bill tendered by him, as I understand it. Whether there was such a conspiracy, as would legalise the acts and declarations of Mary Meadows, as evidence against the prisoner, was a preliminary question of law and of fact, to be decided by the presiding Judge. With the errors committed in adjudging the facts, submitted to him, we have nothing to do; our business is only with errors of law. At the time, the evidence of the acts and declarations of Mary Meadows were received, it was admitted that it would not be evidence, unless a conspiracy was proved. The case does not show that any conspiracy was proved, but, in its place, a guilty connexion, which might, or might not, be evidence of one, but assuredly was not one; and his Honor, in so deciding that it was, as we must understand from the case, as sent here, committed an error in law. It is no answer to say, that such could not have been, in fact, the decision of the Court. I cannot look to any thing which is not in the case; more particularly, when the life of a human being is at issue. If the case had stated, that a conspiracy to murder James Meadows, was proved, the prisoner, so far as this question is concerned, would have been concluded; unless he had set forth in his exception, some legal objection to it--as that it was a conspiracy to commit some other crime; and the acts and declarations of Mary Meadows, in furtherance of the common design, would have been evidence against him. The case states, that, “it is unnecessary to go into particulars:” that is, of the guilty connexion; but the notes of the presiding Judge were sent up. I have not looked into them, as they constitute no part of the case. Godwin's Case 5th Ire. 403. It is objected, that these particulars ought to have been set out by the prisoner, in the case. I cannot see to what purpose or effect. To my apprehension, the prisoner has omitted nothing it concerned his interest to state. If a bill of exception does not state correctly the matter excepted to, the Judge is not bound to sign it; otherwise he is. Here, he has signed it, and we must consider it, as stating all that was necessary. It is further stated in the case, that the prisoner did not complain of the charge. No, the complaint is, that the declarations of Mary...