State v. Grady

• Decision Date: 30 June 1880
• Citation: 83 N.C. 643
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN GRADY.

83 N.C. 643

STATE

v.JOHN GRADY.

Supreme Court of North Carolina.

June Term, 1880.

INDICTMENT for Murder tried at February Term, 1880, of NEW HANOVER Criminal Court, before Meares, J.

The jury found the prisoner guilty of manslaughter, judgment, appeal by prisoner.

Attorney General, for the State .

Mr. D. K. McRae, for the prisoner .

SMITH, C. J.

The prisoner is charged in a single count of the indictment with the murder of one John Taylor on the night of the 30th day of November, 1879, by giving him a blow on the head with a large pole, capped with iron at one end. There was little discrepancy in the testimony of the witnesses as to the facts attending the homicide, but there was a conflict as to the person who gave the fatal stroke. The facts are set out in the case accompanied with a detailed statement of the testimony delivered to the jury, and may be briefly summarized as follows:

An alarm of fire over the river (Cape Fear) and opposite the city (Wilmington) had attracted a fire company to the burning building, and the prisoner was one of a bucket company who were ordered to impress a boat to be used in carrying over coal for the fire engine. The deceased owned and was then in possession of a flat boat which was tied up to the wharf, and another lay outside against it. The officer in command of the bucket company, a large number of whom were present, ordered the boat of the deceased to be taken, to which the latter at first objected, but soon after consented to have taken and used when he had removed his store of provisions from it. Meanwhile some of the company had jumped into and taken possession of the outside boat and were pushing it along that of the deceased, when the officer in charge of the force and the deceased were observed to be engaged in a struggle--the deceased endeavoring to hold his boat to the wharf with a boat-hook, and the officer to break his hold and wrench the boat-hook out of his grasp. At this juncture some one cried out, “Don't you see they are fighting the captain?” and some one in the outside boat, ascertained by the verdict to be the prisoner, dealt a blow with a fire-man's pole on the head of the deceased, and from which he shortly after died.

The jury under the instructions of the court and upon the evidence heard by them rendered a verdict finding the prisoner “not guilty of the murder in manner and form as charged,” but, “guilty of manslaughter.”

During the trial the prisoner's counsel proposed to read in evidence the examination of one John Williams, taken and reduced to writing at the coroner's inquest held over the body of the deceased, and to remove objections to its competency proceeded to show that the witness' name was endorsed on the bill of indictment, and not being called for the state, a summons had been issued for him at the instance of the prisoner and the sheriff had made return that he could not be found, as, residing in the city, he had that morning left home and was absent. The evidence was refused and this was the first error assigned.

The prisoner's counsel moved the court to set aside that part of the verdict which convicts the prisoner of the felonious slaying, and grant a new trial of the charge; and as to so much as acquits of the crime of murder, that it be adjudged to stand.

In support of the application for a partial new trial the following errors are assigned:

1. In rejecting the deposition taken upon the inquisition of the coroner and offered under the circumstances set forth;

2. For omitting to recall to the attention of the jury, in recapitulating the evidence, certain testimony alleged to have been favorable to the prisoner; and

3. For erroneous instructions in the charge to the jury.

First Exception: The refusal of the court to permit the introduction of the examination of the witness, Williams, on behalf of the prisoner was correct and in strict accordance with the law as declared by the court in former adjudications.

In State v. Young, 1 Winst., 126, it is held that such examination is not competent evidence against a person on trial for homicide. But the very point is decided in the subsequent case of State v. Taylor, Phil., 508, where the examination of the witness before a coroner's jury was offered and rejected. “The objection to the evidence,” says BATTLE, J., speaking for the court, “was put upon two grounds; 1st, that the testimony was irrelevant, and, 2d, that it was not shown by the prisoner that Wheeler (the witness) was dead, or what had become of him. His Honor rejected the evidence without stating his reasons for it. We are inclined to think that either ground of objection was sufficient and we are entirely satisfied that the last was.”

The same principle had been previously applied to examinations before committing magistrates in State v. McLeod, 1 Hawks, 344, and State v. Valentine, 7 Ired., 225.

Second Exception: The second cause of complaint rests upon an alleged neglect to recite certain portions of the testimony, contained in the exceptions, in the charge to the jury: The facts stated in the case show that no legal grounds exist to sustain the objection. The testimony of the witnesses, in all the material details bearing upon controverted points, seems, as His...