State v. Harrison

• Decision Date: 17 September 1907
• Citation: 145 N.C. 408,59 S.E. 867
• Parties: STATE. v. HARRISON.
• Court: North Carolina Supreme Court

59 S.E. 867

145 N.C. 408

STATE.

v.HARRISON.

Supreme Court of North Carolina.

Sept. 17, 1907.

1. Criminal Law—Appeal—Objection and Exception.

Allowing the state, on defendant's moving to remove the case to another county for trial, to select any county for trial, other than one objected to by defendant when the duty of making the selection rests on the court, cannot be complained of by defendant; he not having objected and taken exception at the time.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2630.]

2. Witnesses—Using Maps to Explain Testimony.

A witness may be allowed to use a map to explain his testimony; the map not being admitted in evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, § 866.]

3. Criminal Law — Evidence — Conduct of Accused.

Evidence that defendant, who was a neighbor of the parents of the boy alleged to have been kidnapped by him, took no part in the general search instituted by the neighborhood, in which hundreds took part, is admissible; the state relying on circumstantial evidence.

[Ed. Note.—For cases in point, see Cent Dig. vol. 14, Criminal Law, § 778.]

4. Same.

On a trial for kidnapping, the state relying on circumstances to prove that the boy was carried away, and there being evidence that the woods for miles around had been scoured in vain by hundreds of searchers, the state may, as tending to prove that he could not have been lost in the sound, not far away, introduce evidence that many people frequent the sound, that it is a harbor for boats, and that there are usually plenty of fishermen and gunners on the sound, and that the fishermen usually fish near the wharf.

5. Same—Evidence Explanatory of Matters in Evidence.

Testimony introduced by the state, on a prosecution for kidnapping a boy, of a conversation between defendant and the boy's father, consisting chiefly of declarations of defendant, in which defendant introduced the subject of an article in a newspaper suspecting defendant of taking the boy, and asked the father towrite to the paper and criticise the article as untrue, may not be met by evidence that the next day the paper retracted the article.

6. Same—Argument op Counsel—Instruction as to Duty of Jury.

Complaint may not be made of the fact that the state's counsel in argument commented on the fact that trial of the case had been removed from the county where the indictment was found, and that defendant did not testify; the court having promptly interrupted counsel, and stated that it was not proper to comment on these subjects, and that the jury could not consider the same.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1093.]

7. Same—Appeal—Objections and Exceptions.

Complaint may not be made of remarks of the state's counsel in argument; objections and exceptions thereto being noted for the first time in the case on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2645.]

8. Same—Trial—Conduct of Audience—Instructions as to Duty of Jury.

Complaint may not be made of the fact that, on a sharp retort being made by the state's counsel when defendant's counsel interrupted his argument to correct a statement, a large part of the crowd in the courtroom applauded; the court having in strong terms rebuked the audience, and imprisoned one man for the disturbance and in the charge stated to the jury that they would be unworthy to sit in the jury box if they permitted the applause or any sentiment of the audience to sway them in the least from their duty.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1460.]

9. Same—Questions for Jury.

The evidence in a criminal prosecution having raised much more than a mere suspicion or conjecture of defendant's guilt, the case was for the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1713.]

10. Kidnapping—Elements of Offense. Transportation to another state of the person taken is not an essential part of the offense of kidnapping.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 31, Kidnapping, § 1.]

11. Indictment and Information — Acts Constituting Offense.

The indictment for kidnapping need not set out the circumstances attending the commission of the offense; but it is enough that it pursue the language of the statute creating the offense and prescribing its essential elements.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 267.]

Appeal from Superior Court, Pasquotank County; W. R. Allen, Judge.

Joshua Harrison was convicted of kidnapping Kenneth Beasley, a boy eight years old, and appeals. Affirmed.

Aycock & Daniels, Aydlett & Ehringhaus, and I. M. Meekins, for appellant.

Assistant Attorney General Clement, H. s. Ward, and W. M. Bond, for the State.

BROWN, J. The indictment was returned in Currituck county, where the offense is charged to have been committed. The court granted the defendant's motion to remove the case for trial to another county. The counsel for defendant made no objection to any coun ty except Camden. The court then stated that counsel for the state could name any county in the district except Camden. Pasquotank county was then named by counsel for the state and adopted by the court No objection was made by counsel for defendant, and no exception taken at the time. As the defendant took no exception, he acquiesced in the action of the court, and cannot now be heard to complain. Had the defendant objected at the time, his honor doubtless would have corrected the error and selected the county himself. The practice of allowing either party to select the county when a cause is removed for trial Is not to be commended, and, if excepted to at the time, might possibly be regarded as reversible error, necessitating a new trial. The law Imposes upon the court the duty of selecting the county, and this duty cannot be delegated to others.

There are eight exceptions in the record to the rulings of the court upon evidence offered, all of which we have examined with that care which the importance of this case demands. We find no error pointed out by the exceptions of such a character as would justify us in awarding a new trial, and all of the exceptions need not be commented upon in this opinion.

The witness Beasley was permitted to take up a map and show the location of his residence. The court permitted the witness to use the map to explain his evidence. The defendant's exception thereto cannot be sustained. The map was not admitted in evidence; but it was competent for the purpose of enabling the witness to explain his testimony and enable the jury to understand it Diagrams, plats, and the like are of frequent use for this purpose in the trial of causes, and for such purpose the use of the map was admissible. Dobson v. Whisenhant, 101 N. C. 645, 8 S. E. 126; Riddle v. Germantown, 117 N. C. 387, 23 S. E. 332; State v. Whiteacre, 98 N. C. 753, 3 S. E. 488; State v. Wilcox, 132 N. C. 1135, 44 S. E. 625.

It was in evidence that defendant was a neighbor of the boy's parents, and defendant excepts because a witness was permitted to state that defendant took no part in the general search instituted by the neighborhood, in which several hundred persons participated. We see no objection to this, and his honor's ruling is supported by State v. Wilcox, 132 N. C. 1128, 44 S. E. 625. It is only a very slight circumstance, It is true; but facts, which are but slight evidence, standing alone, should be admitted when the state relies upon circumstantial evidence, if they, with the other facts proved, bear upon the offense charged. State v. Rhodes, 111 N. C. 647, 15 S. E. 1038.

Exceptions 4, 5, 6, and 7 relate to the introduction of evidence tending to prove that the boy could not have been lost in the sound, not far from his residence; that "many people frequent the sound"; that "it is a harbor for boats"; that "there are usually plentyof fishermen and gunners on the sound, and fishermen usually fish near the wharf." The state was endeavoring to prove by circumstances that the boy had been carried away. To that end evidence was offered that the woods for miles around had been scoured in vain by hundreds of searchers. The state then undertook to demonstrate the great improbability that the boy was lost in the nearby water. We see no objection to this proof. Its value was for the jury. It was a circumstance, slight though it may be, tending, with other evidence, to establish the contention that the boy had not been lost in the woods or drowned along the shore of the sound. It was incumbent upon the state to establish the fact that the boy had been actually carried away, as well as to prove that the defendant did it. In this connection the language of Mr. Justice Connor in State v. Wilcox, 132 N. C. 1143, 44 S. E. 633, is very pertinent; "In a criminal case, where all the circumstances of time, place, motive, means, opportunity, and conduct concur in pointing out the accused as the perpetrator of an act of violence, the force of such circumstantial evidence Is materially strengthened by the total absence of any trace or vestige of any other agent."

Upon the examination of S. M. Beasley, a state's witness, and the father of Kenneth Beasley, the following conversation with defendant was received in evidence on behalf of the state without objection: "Harrison asked me If I had seen the article in the News and Observer, and what I thought of it. I said: 'I don't know what to think of It.' He said: 'Don't you think it is a batch of lies?' I said: 'I don't know whether it is of not.' Then he asked me if I would not write an article to the News and Observer and criticise this article referred to, as untrue. I told him I was very particular as to what I said, especially what I wrote for the public, as I wanted to get my boy back If possible. He said: 'It is perfectly absurd to entertain the kidnapping idea.' I said: 'It does not seem to me absurd to...