State v. H. C. Secrest.

• Decision Date: 31 January 1879
• Citation: 80 N.C. 450
• Court: North Carolina Supreme Court
• Parties: STATE v. H. C. SECREST.

80 N.C. 450

STATE

v.H. C. SECREST.

Supreme Court of North Carolina.

January Term, 1879.

INDICTMENT for Murder removed from Burke and tried at Fall Term, 1878, of MCDOWELL Superior Court, before Gudger, J.

The prisoner was charged with the murder of his wife by means to the jurors unknown. The case states that the prosecution relied wholly on circumstantial evidence tending to show that the homicide occurred on the 6th of March, 1877, while the prisoner alleged that his wife was living long after that date, and proposed to prove by a witness that about christmas, 1877, a lady and child came on board the cars at Chester, S. C., and the lady told the witness she was going to Monroe in Union county, N. C. (It had been shown by the state that a few days before she was last seen, she had left Union county, which was her home, in company with the prisoner, and travelled with him to one Cline's, near the town of Hickory in Catawba county.) Objection was made, but withdrawn, and the evidence admitted. There was other evidence offered on behalf of the prisoner for the purpose of showing that his wife was seen in Charlotte in January, 1878.

Certain remains had been found in Burke county, alleged to be those of the wife and little daughter of the prisoner, and the state offered evidence to the effect that bones, hair, a snuff box, pair of copper-tipped child shoes, stockings, pieces of calico, flannel and blanket, and a lady's cloth gaiter, were found in a grave about six feet long, eighteen inches deep, and twenty inches wide; and that these various articles belonged to the deceased, Maggie Secrest and her four year old child Minnie, and were parts of their dress.

“The prisoner introduced Dr. R. C. Pearson, as an expert, who stated that the bones shown him were parts of the skeletons of two human beings, one an adult and the other a child, and gave much other evidence in regard to the remains, and also his opinion on many questions as to the condition of human remains, when buried, how long before decay would set in, when it would be complete,” & c.

“The state called Dr. W. A. Collet, as an expert, and proposed to examine him in reply to Dr. Pearson's testimony in regard to these remains. Objection was made by the prisoner, which was overruled and Dr. Collet allowed to testify, and the prisoner excepted.”

“It was in evidence that a pair of small copper-tipped leather shoes were found in the grave, one lying on top of the other, with the soles to the east, the toes towards the south and turned a little upwards, with a small stocking in each; that there were no bones or animal remains in the shoes or stockings, except a white mould in the shoes. Dr. Pearson was asked by the prisoner if in his opinion the bones of the foot or leg could have been drawn out of the shoes and stockings without disturbing their position, and he said he thought not. In reply to Dr. Pearson, the state asked the following question of Dr. Collet: ‘If a child from three to four years old should be buried with its clothes on, which child had died by violence and with animal heat in it, in a grave eighteen inches deep without a coffin, would putrefaction or decomposition of the soft parts of the feet have been so far advanced, that at the expiration of three, four, or five months, or if longer, how much longer a time, the bones could have been pulled out without disturbing the shoes.’ This question was objected to by the prisoner, objection overruled and Dr. Collet allowed to answer, and prisoner excepted.”

“All the questions asked by both sides of the medical witnesses were by consent propounded on the assumption of the facts stated being found true by the jury.”

It is not necessary to an understanding of the opinion that the facts applicable to the other exceptions should be stated. Verdict of guilty, judgment, appeal by prisoner.

Attorney General, for the state .

Messrs. Reade, Busbee & Busbee and D. A. Covington, for the prisoner .

SMITH, C. J.

In the able and earnest argument on behalf of the prisoner his counsel insisted that the case contained in the record failed to disclose sufficient proof of the corpus delicti, or offence charged, to authorize the jury to pass upon the question of the prisoner's guilt. It is contended that the evidence does not establish the death of the prisoner's wife with whose murder he is charged, nor identifythe remains taken from the place of their deposit in the pit, as hers, nor show that the person found died from an act of violence, and that without proof of these facts the jury should have been instructed not to prosecute the enquiry further, but to acquit.

The argument is not warranted by the record. No such point seems to have been made at the trial, and no such instruction asked of the court. We cannot assume that all the facts proved at the trial are contained in the case sent up for our review, and under the well settled rule they ought not to be. In the preparation of cases on appeal, as we have often had occasion to remind the profession, no more of the evidence should be stated than such as relates to the exceptions intended to be presented and is calculated to elucidate and explain them. The rule was enforced under the old, as it is under the new system of practice, and its observance is essential to the proper exercise of the appellate power conferred upn this court. “It would be much better,” says RUFFIN, C. J., in Green v. Collins, 6 Ire., 139, “to state only so much of the evidence as raised a question of law at the trial, and then the opinion prayed and given thereon with simplicity and precision.”

This course is prescribed “so that it may be distinctly known what error is alleged, and the parties not be surprised by decisions in this court on points different from those intended.”

We must so understand the statement to have been prepared in this case, and consequently the exception, not appearing therein and now for the first time pressed, cannot be entertained.

There were several exceptions taken for the prisoner during the trial, but it is only necessary to notice one in our view decisive of the case.

The defendant introduced Dr. R. C. Pearson as an expert who was examined in regard to the disinterred bones, alleged by ...