State v. Hodge
| Decision Date | 18 December 1906 |
| Citation | 55 S.E. 791,142 N.C. 676 |
| Parties | STATE v. HODGE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Dunham County; Ferguson, Judge.
John H Hodge was convicted of murder, and appeals. Affirmed.
Where in a prosecution for murder, the witnesses, on motion of the defense were excluded from the courtroom, the action of the trial court in not permitting a witness for the defense to testify because defendant's counsel, who had talked with him on the first day of the trial and learned of his testimony, did not put him under subpoena until the second day of the trial, and permitted him to stay in the courtroom without having him sworn, or calling the court's attention to the matter until he was called to the stand, was not reversible error, where it did not appear that defendant was prejudiced by the court's refusal to receive the evidence of the witness, though counsel for accused stated that his testimony was material, but did not state in what particular it was material, or what was expected to be proved by such witness.
Guthrie & Guthrie and Braham & Brawley, for appellant.
The Attorney General, for the State.
The prisoner was convicted in June last of the murder of his wife on February 24, 1906. The evidence was plenary. He came to the house of his wife between 11 and 12 o'clock at night when she was in bed, as were her 6 children, the youngest 5 years old, 4 of them girls, and the oldest a girl about 17 and all sleeping in the same room. The oldest boy testified that he was waked up between 11 and 12 o'clock by his father's voice, who upbraided his mother about a deed he had made her for the property. When she refused to discuss the matter, he ran to the bedside, and attacked her in the presence of her children, who tried to shield her and to hold him back but in vain. He threatened to shoot them, and when the terrified children relaxed their hold, and were run out of the house by him, he dragged his wife out of bed and shot her. This boy was just 15 years old. The prisoner had beaten his wife before, and had been put under a peace bond. A neighbor, who heard the screams and pistol shot, hurried over to the house, when the prisoner, who was standing in the room where his wife lay shot and dying, met him in the hallway and, pointing his pistol at witness' head, told him not to come in. The children were all out in the yard in their night clothes screaming. The witness went to get an officer, and when he got back the prisoner had fled. The dead body of prisoner's wife, with the bedclothes wrapped around her waist, was then lying with her head on the hearth and feet on the floor. She had been shot in the side. The prisoner rode in a street car to the vicinity of his wife's house, got off, and went in that direction, and soon the pistol shot was heard. Several testified that if the prisoner was then under the influence of liquor it was not perceptible; he seemed sober. After the homicide his employer (Mr. Houston) went to see him, told him he was sorry he had gotten into this trouble, and asked him The same witness saw him again, and asked, in the presence of the jailer, When asked if he was not afraid he might be hung, he said "he didn't care, and was ready to pay the penalty; that he hoped they would hang him, that he was ready to hang then." When the coroner went to see the prisoner, he looked up and asked, "Is she dead?" When told she was, he said, "Then I am satisfied." W. T. Riggsbee, who was with the coroner, cautioned him to keep silent, that he would regret it, but he replied that "he would not, and that he had thought over the matter for five weeks." When asked when he got the pistol, he said a few days ago, and when asked if it was not since Thursday (the homicide was on Saturday night) he said "Yes"; said he got the pistol from a friend, but when asked the name of his friend said he had forgotten. Mr. Hamlet testified that about 10 o'clock the night of the homicide he saw the prisoner buy a pistol, who asked if the pistol would "shoot strong." When told that it would, he said he "would try it next day, and if it did not shoot strong he would rue back." The oldest daughter, aged 17 years, testified substantially to the same state of facts as her brother; that they were all asleep in the same room, she and one of her sisters in bed with her mother, when she was awakened by the prisoner's voice. He was standing on the floor, and told his wife to get up; that he "wanted to talk with her." He again told her to get up, and said, "I am going to live in this house in spite of you and Lawyer Manning." He again told her to get up. She told him she was sick, and to get away; she could not stand to talk to him. He was then sitting upon the side of the bed. He immediately pulled his pistol out, and said, "You can't stand it; see if you can stand this." The witness tried to get between the pistol and her mother's head, when the prisoner told her to "get up, or I will shoot you," whereupon the prisoner took hold of his wife's feet, jerked her out of bed, and dragged her to the hearth. When this daughter started to them, prisoner pushed her to the door, and then, with his wife in one of his arms, shot her in the side. She said her younger sister offered to fix her father a place to lie down when they first woke up, but he declined, and said, "I would'nt lay down in this house five minutes for $1,000." She says that before she went to bed she fastened all the doors except the back door, which her mother said that she had fastened. The prisoner and his wife had separated and were not living together. The sole evidence introduced for prisoner was that of some witnesses who testified that he was drinking on his way to his wife's house that night. The only exception to be considered (for though there were others they were merely formal, and are without merit, and, though not expressly abandoned, are not in the brief) is the following, as stated by the judge: The court adds: This was a mere abstract proposition, and could not be held error unless the prisoner had made known what the evidence would be. Had that been stated, and had it been in any wise material, there can be no doubt the learned and just judge who tried this case would have admitted it, notwithstanding the conduct of counsel, and the undue advantage which might have been given the defense by permitting this witness to remain in the courtroom during the whole trial, in contempt of the order of the court, made at the instance of the defense, by which all witnesses were sent out of the courtroom. At any rate, if counsel had stated what he expected to prove, the question would be presented whether the defense had suffered any prejudice. It is elementary learning that the appellant must show error that prejudiced him. For all we know, the witness Riggsbee would not have given any evidence the exclusion of which could be of any effect. Neither below nor in this court, even, did the defense give the slightest inkling by affidavit or even a statement what it would be. He did not present it in either court. The mere assertion that excluded evidence is material is not sufficient. The prisoner may be mistaken about it, and, if so, its exclusion, even though erroneous, is not reversible error. For that reason courts have always held that the excluded evidence must be material, and whether it is material or not is a question of law which must be decided by the court, and not by the bare suggestion of the prisoner or his c...
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