State v. Hensley

• Citation: 94 N.C. 1021
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1886
• Parties: STATE v. J. P. HENSLEY.

94 N.C. 1021

STATE

v.J. P. HENSLEY.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

INDICTMENT for murder, tried before Gudger, Judge, and a jury, at the December Term, 1885, of the Superior Court of BUNCOMBE county.

The prisoner was indicted for the murder of one Wm. G. Haney.

On the calling of the special venire, which was drawn from the jury box in accordance with the provisions of §1739 of The Code, the prisoner challenged the array, and for cause of challenge showed, and the Court found the fact to be, that there was no revision of the jury list at the September meeting, 1885, of the Board of Commissioners of Buncombe county. That the last revision was in September, 1884, and that the jury box was not locked when it was brought into Court; that the jury boxes were kept in the office of the commissioners, and that other persons had access to this office; that the jury boxes were sometimes kept locked, and sometimes unlocked, and that when the Clerk of the Board went after them, for the purposes of this trial, they were unlocked. It was not suggested that any names were taken from, or added to, the names in the boxes.

The office where the boxes were kept, had been used at the November Term, 1885, of the United States District Court, by the Marshall of such Court, as a place to assemble the witnesses in attendance, in order to pay them off.

The challenge to the array was not allowed, and the prisoner excepted.

As a further challenge to the array, the prisoner alleged, and the Court found as a fact, that one Peter Redmond, who was drawn on the venire, was dead, and had died before the first day of September, 1885, and also, that one M. W. Reeves, who was also drawn, had removed from the county before the said last mentioned date. The Court further found, that when these names were drawn from the box, the sheriff stated that the one was dead, and the other a non-resident, and the Court asked the prisoner's counsel, if they had any suggestion to make, the Solicitor asking the Court to determine upon the facts of the matter at once. Counsel for the prisoner said that they had nothing to suggest, and the names were then put on the list.

This cause of challenge to the array was likewise overruled, and the prisoner excepted.

One J. B. Whitesides, being drawn from the venire, was challenged by the State for cause, and stated on his voir dire, that he owned no land, nor did his wife. That he had a bond to make title to him, for a lot of land, and had paid a portion of the purchase money, and was to have a title made to him when he paid the residue. That he lived on the land, and paid the taxes on it. The Court held the cause of challenge good, and the prisoner excepted.

The special venire being exhausted, the Court ordered the sheriff to summon a venire of fifteen from the by-standers, to which the prisoner excepted.

While the Sheriff was summoning this additional venire, it was ascertained that four names drawn on the first venire, had accidentally dropped from the box. By consent, they were put back into the box, and the jury was completed from them.

When the jury was completed, the prisoner had not exhausted his peremptory challenges.

The evidence was in substance as follows:

John Lawson, a witness for the State, testified that he knew both the deceased and the prisoner. That on Monday, the 3d day of November, 1885, between 6 and 7 o'clock A. M., he went to Lawson's store, and found Haney, the deceased, E. Recton, Tom Harkins, and Charles Harrison, standing in front of the store. That after he had been there for three or four minutes, he saw the prisoner come out of a store on the opposite side of the street. That he locked the store door, and put the key in his pocket, and then started down the street towards where the witness and the deceased were standing. That the prisoner walked nearly opposite to where the deceased and the witness were standing, and then turned suddenly and crossed the street. When he stepped on the sidewalk, a few feet from the deceased, he said, “Good-morning, gentlemen,” to which the deceased replied, “Good-morning, Jim.” That the prisoner then said to the deceased, “Gray, what did you hit me for with that stick?” The deceased answered, “What did you follow me, and catch me, and jerk me around the way you did for?” The prisoner then said: “You called me a d--ned rascal.” The deceased answered, ““You called me that first.” The prisoner then said, “Gray, you ought not to have hit me.” To this the deceased replied: “I know I ought not, Jim, and I am sorry that I did it, and I would not have done it for anything in the world;” and then added, “I haven't anything against you, Jim, and I don't want any fuss with you.” That at this time, the deceased was standing on the sidewalk to the witness's right, and the prisoner to his left, and they were about six feet apart. After the deceased said, “I don't want any fuss with you, Jim,” the prisoner stood about one minute, with both hands in his pockets, and then drew his right hand from his pocket and struck at the deceased, and said, ““““Take that, d--n you.” That the prisoner could not reach the deceased with his fist, and witness did not see anything in his hand, but as the prisoner made the stroke, he heard some missile pass him, in the direction of the deceased. That the prisoner immediately put his hand into his hip pocket, and drew a pistol. That the witness caught the prisoner to prevent him from shooting, and in the struggle they both fell to their knees, and about that time the prisoner began shooting. That he fired two shots while the witness held him, and then got loose from the witness, and jumped about three steps from him, and fired the third shot, which inflicted the mortal wound. That as soon as this shot was fired, the prisoner ran, but was soon arrested.

The witness further testified, that during the conversation between the prisoner and the deceased, the deceased, who was a cripple, seemed frightened, and his voice trembled, but that the prisoner seemed cool, and showed no sign of agitation.

Charles Harrison, a witness for the State, testified to substantially the same facts as the witness Lawson, except that he saw the rock or other missile, which the prisoner threw at the deceased when he first struck at him. That when he threw the rock, he said: “D--n you, take that,” and when he put his hand to his pocket to draw his pistol, he said: “D--n you, draw,” or “D--n you, draw if you dare.” That after the rock was thrown, the deceased took out his knife and attempted to open it, but it dropped to the ground, when he drew his pistol, which he held in both hands, pointed at the ground. Witness noticed the prisoner while Lawson was attempting to hold him, and saw him trying to present the pistol at the deceased, around Lawson's body.

There was evidence introduced, tending to show that the deceased and the prisoner had had a fight on the Saturday evening previous to the homicide on Monday, and that the deceased had sticken the prisoner, and drawn blood. There was also evidence that the prisoner said, just after this difficulty, that no man could draw his blood and live, and that he would kill the deceased, and that the fight was not over with yet.

There was conflicting evidence as to whether the deceased fired or not at the prisoner, some of the witnesses saying that he did, and others that he did not. There was also evidence tending to show, that the pistol found in the hands of the deceased, after his death, was not discharged, every chamber being loaded.

The other material facts are set out in the opinion.

There was a verdict of guilty of manslaughter, and from the judgment thereon, the defendant appealed.

Attorney-General, for the State .

Mr. M. E. Carter, for the defendant .

MERRIMON, J.

The causes of challenge to the array assigned, were not such as entitled the prisoner to have the whole panel of the special venire quashed. It is true that the county commissioners were very negligent in failing to revise and correct the jury lists, and to place the names of all persons in the county, elligible to be jurors, in the jury box; and the chairman of the Board of Commissioners, the Clerk, and Sheriff, were equally negligent in respect to their respective duties as to the locking, custody, and safe-keeping of that box. Such neglect was highly culpable, and ought not to pass unnoticed by the proper authorities.

It is very important that the statutory regulations in respect to the selection of jurors, shall be faithfully observed. A due observance of them, greatly promotes the fair and intelligent administration of public justice, and besides, the plain commands of a statute should never be neglected or disregarded by those charged with special duties. But important as such regulations are, they are regarded as only directory--they have never been treated as mandatory--and it is only strictly necessary that the persons summoned to be jurors, shall be elligible as such in other material respects. It is only essential to obtain a fair and impartial jury, composed of elligible men.

It was not suggested, nor did it appear, that any name of a person found in the jury box, was improperly placed in it, or that any name was improperly taken from it, nor did it appear at the time the challenges were made, that the prisoner might probably be prejudiced, nor does it appear that he was in fact, in any material respect or degree, prejudiced by reason of the irregularities complained of.

Nor was the fact that one of the persons named in the venire, had died before his name was drawn, and that another had left the county before his name was drawn, and before the jury lists should have been revised and corrected, good cause for such challenge. That the names of these persons were in the jury box, was probably owing to the failure of the county commissioners to correct the jury lists, and they were inadvertently placed in the...