State v. Harden

Decision Date09 April 1919
Docket Number(No. 348.)
Citation98 S.E. 782
PartiesSTATE . v. HARDEN et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Forsyth County; Bryson, Judge.

Tom Harden and another were convicted of highway robbery, and they appeal. No error.

Hastings & Whicker, of Winston-Salem, for appellant Beale.

Fred M. Parrish, of Winston-Salem, for appellant Harden.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. The state's witness, A, J. Edwards, upon whom the assault and robbery were committed, during the course of his testimony stated that about 10 or 15 minutes after the robbery he was in George Anderson's store, telephoning for a policeman, when defendants entered the store [and seemed surprised to see him there]. The last part of this testimony, which we have inclosed in brackets, was excluded by the court on objection by defendants, but, in stating the evidence and contentions to the jury, the learned judge inadvertently referred to it, but gave no instruction in regard to it in his general charge, though at the time it was ruled out the judge told the jury they should not consider it. The reference to this statement of Edwards is now assigned as error.

It is evident that the reference to the excluded statement was made by mistake, and should have been called to the court's attention at the time, so that it might then be corrected. We have repeatedly held that this should be done when the judge is reciting the evidence or the contentions of the parties. State v. Spencer, 176 N. C. 709, 97 S. E. 155, is the most recent case settling this question, and it cites State v. Blackwell, 162 N. C. 672, 78 S. E. 316, State v. Martin, 173 N. C. 808, 92 S. E. 597, and State v. Burton, 172 N. C. 939, 90 S. E. 561; there being numerous cases both before and since they were decided.

But the evidence was competent, as held in State v. Spencer, supra. The surprise or confused appearance of the defendants was natural evidence. A man may show his guilt by his action or conduct, as well as by his words. The witness did not know the defendants before he was robbed, and when they first entered the store he inquired of Van Surratt and Emma Anderson who they were. If be did not know them and they did not know him, there was no reason for them to be surprised at seeing him in the store. The fact that they were surprised is therefore a proper and relevant circumstance for the jury to consider. Whether they were surprised is also for them to determine. We said in State v. Spencer, 176 N. C. at page 712, 97 S. E. at page 157:

" 'The instantaneous conclusions of the mind as to appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact and are admissible in evidence.' State v. Leak, 156 N. C. 643, 72 S. E. 567; Renn v. Railroad, 170 N. C. 12S, 86 S. E. 964. Within this rule, the opinion of the witness as to the appearance of the dog and his conduct was permissible."

If the defendants exhibited surprise by their conduct, it was because they had been with the witness George Edwards, and recognized him as the victim of their robbery, or rather it is a fair and reasonable inference for a jury to draw. Judge Gaston said, in State v. Swink, 19 N. C. 9 (which was approved in State v. Rowe, 98 N. C. 629, 4 S. E. 506, and State v. Spencer, supra):

"All the surrounding facts of a transaction may be submitted to a jury when they afford any fair presumption or inference as to the question in dispute. Upon this principle it is that the conduct of the accused at the time of the offense, or after being charged with it, such as 'flight, the fabrication of false and contradictory statements, the concealment of the instruments of violence, the destruction or removal of proofs tending to show that an offense had been committed, or to ascertain the offender, ' are all receivable in evidence as circumstances connected with, and throwing light upon, the question of imputed guilt."

See State v. Hastings, 86 N. C. 596.

We are of the opinion that the defendants were properly tried, and that the evidence fully sustains the verdict and judgment.

The right of Judge Bryson to preside at the court is questioned by an exception of the defendants, but, we think, without sound reason. We will briefly state the facts: The court calendar in that judicial district is based upon two fixed periods of the year, the first Monday of March for the spring ridings, and the first Monday in September for the fall ridings, and the courts are required to be held commencing on those days, or on a certain designated number of Mondays before and after, for each of the counties in rotation. Public Laws 1917, c. 169, provided that the particular court in question should commence on the ninth Monday before the first Monday in March, which, it so happened, fell upon December 30, 1918, the first week being for the trial of civil cases, there being three weeks of the term. Judge Lane had presided at the fall terms of 1918 of Forsyth superior court, and the contention of the defendants is that he should have held the court at which they were tried and convicted. Judge Bryson was elected for the Twentieth judicial district, and was commissioned and duly qualified as such, and assigned by statute to hold the courts of the Eleventh district. When his right to hold the court was challenged, he made, and ordered to be entered in the minutes, the following findings:

"That the term of superior court for Forsyth county at which the defendants were tried and convicted was the regular term of court fixed by the statute, beginning upon the 30th day of December, 1918, and continuing for a term of three weeks; that, no judge appearing upon Monday, the 30th day of December, 1918, it was the duty of the sheriff of said county, in compliance with the law, to open said court and adjourn the same from day to day for the first four days of said term; that the adjournment of said court on Monday and Tuesday by said Sheriff Flynt was in compliance with the statute; that the direction to the sheriff by wire from Judge Bryson, who was assigned by statute to hold the courts of the Eleventh judicial district of North Carolina for the Spring term of 1019, was lawful and in compliance with the statute; and that the said court was legal and properly constituted."

It appears, therefore, that as no other judge was present on the first Monday of court, it was adjourned by the sheriff from day to day, under Revisal, §...

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