State v. De Graff

• Decision Date: 28 November 1893
• Citation: 18 S.E. 507,113 N.C. 688
• Parties: STATE v. DE GRAFF.
• Court: North Carolina Supreme Court

18 S.E. 507

113 N.C. 688

STATE v. DE GRAFF.

Supreme Court of North Carolina

November 28, 1893

Appeal from superior court, Forsyth county; Winston, Judge.

Peter De Graff, convicted of murder, appeals. Affirmed.

When a juror was challenged, and it appears that his opinion adverse to the accused, was based on rumors only, and he testified that, after hearing the evidence, he could render a fair and impartial verdict, the court's finding that he was impartial will not be disturbed.

The Attorney General, for the State.

SHEPHERD C.J.

The prisoner was indicted for the murder of one Ellen Smith, and after his arraignment, moved to quash the indictment, on the ground that one of the grand jurors was a cousin of the deceased, and therefore disqualified to participate in the finding of the bill. In State v. Gardner, 104 N.C 739, 10 S.E. 146, it is held that, if a motion to quash for the disqualification of a grand juror is made before plea, the prisoner has a right to have the motion granted; but if the motion be made after plea, but before the jury is impaneled, it may be granted or not, in the sound discretion of the judge; and in such latter case, if the motion is simply declined, without the assignment of any reason, it will be assumed that such discretion was exercised, and no appeal will lie from the ruling. The exception, therefore, to the refusal of the motion, is without merit.

Two of the petit jurors were challenged, and, after examination, the court found that they were impartial, and they were sworn. It appears that their opinions, adverse to the prisoner, were based upon rumors only, and they both stated that, after hearing the testimony, they could render a fair and impartial verdict. The exceptions to the rulings of the court upon the question of indifferency, based upon such examination, cannot be sustained. State v. Ellington, 7 Ired. 61; State v. Collins, 70 N.C. 243; Busb. Dig. 336, 337.

In the course of the trial, certain confessions were offered by the state, and their admissions was excepted to, because of alleged threats made by the witness on the occasion of the arrest of the prisoner. The witness Adams, a policeman, testified as follows: "I went to help arrest the prisoner. The sheriff and two others went along. Saw prisoner at the window of Russell's house at about 12 o'clock at night. He pulled the curtain back. I said to the prisoner: 'Peter, you had just as well give up. You may get one of us, but we will get you.' We went in, and I pointed my pistol at the prisoner. Prisoner had three heavy pistol and 52 rounds of cartridges in a trunk by the bed. After the prisoner put on his clothes, he began to make fun of us for coming after him with little popguns. We had Smith & Wesson's pistols. He said, 'Let me show you some pistols,' and he showed us these three large pistols. He rode behind me on a horse to Winston. He was not frightened, nor was he tied. No threats were made to him and no promises, and his statements were voluntary." The witness, at another stage of the trial, was examined again upon this subject, but his testimony was substantially the same. The witness then testified to declarations made by the prisoner concerning his flight to Roanoke and New Mexico, and his subsequent return to this state. It is hardly necessary to cite authority in support of the ruling of the court. The single circumstance of pointing the pistol at the prisoner, in connection with the language of the witness, indicating that it was done only for the purpose of effecting the arrest, very clearly would not have authorized the exclusion of the declarations subsequently made; and especially is this so in view of the conduct of the prisoner, showing that he had no actual fear of violence, and also because of the entire absence of any circumstances whatever that were likely to produce such an apprehension.

It appears that, when the officer was on the porch of the house where the prisoner was staying, the owner inquired, "Who was it?" It also appears that the prisoner was in the room, and heard the remark. The remark was harmless, but had it been otherwise, having been made in the presence of the prisoner, it was plainly admissible. State v. Ludwick, Phil. (N. C.) 401. This exception, like several others, is so trivial that, but for the gravity of the charge, it would be overruled without comment.

Neither is there any force in the objection to the admission of the statements of the prisoner before the committing magistrate. The testimony upon this point is that "he was duly warned; told that he need not say anything unless he wanted to, and it would not be used against him if he did not testify, and it was dangerous to go on the sand," etc. It is well settled that, in cautioning the prisoner under such circumstances, it is not necessary that the exact language of the statute (Code, § 1146) should be used. A substantial compliance is sufficient, and such was the case in the present instance. State v. Rogers, 112 N.C. 874, 17 S.E. 297.

Equally untenable is the objection to the testimony touching the general character of the witness Davis, and the same is true as to the question asked the said witness whether the prisoner told him where the deceased was at a certain time. The witness gave a negative answer, and, even if the question were objectionable, (and we do not see that it is,) the prisoner could not have been prejudiced thereby.

The state introduced a letter found in the bosom of the dead woman, and introduced Wilson, as an expert, to prove that the said letter was in the handwriting of the prisoner. Wilson being examined by the court as to his qualifications as an expert, testified as follows: "Was bookkeeper many years. Am secretary and treasurer of the city. It is my duty as such to compare handwritings, to see which are genuine and which are not; to examine checks and drafts. Have been in the business 15 years. I have had such experience in the business of inspecting handwritings that I can compare a paper with one whose genuineness is known, and tell if the former paper is genuine." His honor held that the witness had been properly qualified as an expert, and the prisoner excepted. The witness was then handed an affidavit made by the prisoner in this case, the signature to which was admitted to be genuine, and the witness was permitted to compare the same with the letter, and to give his opinion as to whether the letter was in the handwriting of the prisoner, and the prisoner excepted. Another witness, J. P. Stanton, was also examined, and gave similar testimony. He testified in reference to his competency as an expert as follows: "Have been four or five years register of deeds of the county. Had occasion to examine signatures. Frequently called on to prove signatures in clerk's office of dead men's names. Used...