State v. Hartsfield

• Decision Date: 08 October 1924
• Docket Number: 241.
• Parties: STATE v. HARTSFIELD.
• Court: North Carolina Supreme Court

124 S.E. 629

188 N.C. 357

STATE v. HARTSFIELD.

No. 241.

Supreme Court of North Carolina

October 8, 1924

Appeal from Superior Court, Wake County; Grady, Judge.

W. A Hartsfield was convicted of selling and possessing for sale intoxicating liquors. and he appeals. No error.

Criminal prosecution tried upon an indictment charging the defendant (1) with selling or disposing of, for gain, certain spirituous, vinous, or malt liquors (C. S. §§ 3367 and 3373) and (2) with having or keeping in his possession, for the purpose of sale, certain spirituous, vinous, or malt liquors (C. S. § 3379), contrary to the statutes in such cases made and provided, etc.

From an adverse verdict and sentence of 18 months on the roads, the defendant appeals, assigning errors.

Motion for new trial for newly discovered evidence may be entertained in superior court, at least during term at which case was tried, and allowed or not in discretion of presiding judge, whose actions and findings of fact are ordinarily not subject to review.

Douglass & Douglass, of Raleigh, and J. R. Hood, of Goldsboro, for appellant.

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

STACY J.

The defendant, in limine, lodged a motion for a new trial upon the ground of newly discovered evidence. It is alleged that the information which the defendant considers vital and important to his defense came to his attention after the adjournment of the term of court at which the case was tried, and after the appeal was docketed here. Allen v. Gooding, 174 N.C. 271, 93 S.E. 740. It is the settled rule of practice with us, established by a long and uniform line of decisions, that new trials will not be awarded by this court in criminal prosecutions for newly discovered evidence. State v. Williams, 185 N.C. 664, 116 S.E. 570; State v. Jenkins, 182 N.C. 818, 108 S.E. 767; State v. Lilliston, 141 N.C. 857, 54 S.E. 427, 115 Am. St. Rep. 705, and cases there cited. Such motion may be entertained in the superior court, at least during the term at which the case was tried, and allowed or not in the discretion of the judge presiding. State v. Trull, 169 N.C. 370, 85 S.E. 133; State v. Starnes, 97 N.C. 423, 2 S.E. 447. And, ordinarily, the action of the trial court and his findings of fact on such motion are not subject to review on appeal. State v. De Graff, 113 N.C. 694, 18 S.E. 507.

Following the established precedents, defendant's motion for a new trial, based on the ground of newly discovered evidence, must be denied in this court, as a matter of procedure without passing upon its merits. State v. Turner, 143 N.C. 641, 57 S.E. 158; State v. Starnes, supra.

We then come to a consideration of the record.

The defendant's chief assignment of error, emphasized most strongly on the argument and stressed in his brief, is the one addressed to the action of the court in permitting the solicitor to offer in evidence the deposition or affidavit of one of the state's absent witnesses. When the case was called for trial at the September term, 1923, the defendant moved for a continuance. This was resisted by the solicitor on the ground that George McKeithan, a witness for the state, would be absent from the jurisdiction of the court at the next term; whereupon it was "agreed that his statement might be taken and sworn to before Judge Calvert or the clerk of the court; W. F. Evans, solicitor, representing the state, and W. H. Sawyer representing the defendant."

Defendant calls attention to the fact that while, on the record, this statement seems to have been taken with his consent, or at least with the consent of his counsel, it nowhere appears to have been prepared in pursuance of an agreement on his part that it might be used in evidence against him. But even if such were the agreement, and omitted by inadvertence from the record, defendant further says the agreement, on its face, did not extend beyond the next succeeding term, and therefore it could not lawfully be used against him several terms thereafter.

There is no statute in North Carolina authorizing the taking of depositions to beused as evidence by the state in criminal prosecutions. This privilege is extended to the defendant in certain cases (C. S. § 1812), but it may not be exercised by the state as a matter of right. With respect to the witnesses offered by the prosecution, the defendant has the right to demand their presence in the courtroom, to confront them with other witnesses, and to subject them to the test of a competent cross-examination where their bearing and demeanor may be observed by the jury. State v. Mitchell, 119 N.C. 784, 25 S.E. 783, 1020. The defendant may not be required, against his will, to examine the state's witnesses in the absence of the jury. He "is entitled to have the testimony offered against him given under the sanction of an oath, and to require the witnesses to speak of their own knowledge and to be subjected to the test of a competent cross-examination." State v. Dixon, 185 N.C. 727, 117 S.E. 170.

Speaking to a similar question in State v. Hightower, 187 N.C. 310, 121 S.E. 622, it was said: "In all criminal prosecutions the defendant is clothed with a constitutional right of confrontation, and this may not be taken away any more by denying him the right to cross-examine the state's witnesses than by refusing him the right to confront his accusers and witnesses with other testimony. Constitution, art. 1, § 11. 'We take it that the word confront does not simply secure to the accused the privilege of examining witnesses in his behalf, but is an affirmance of the rule of the common law that in trials by jury the witness must be present before the jury and accused, so that he may be confronted; that is, put face to face.' Pearson, C.J., in State v. Thomas, 64 N.C. 74. And this, of course, includes the right of cross-examination. It is fundamental with us, and expressly vouchsafed in the Bill of Rights that no man shall be 'deprived of his life, liberty, or property but by the law of the land.' Constitution, art. 1, § 17."

This rule is as old as the common law itself. It was a fixed custom among the Romans, observed and practiced by them certainly as early as the time of Augustus Cæsar. Festus, answering the chief priests and elders of the Jews, when they desired to have judgment against the Apostle Paul, said:

"It

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