State v. Howard

• Court: North Carolina Supreme Court
• Writing for the Court: ASHE
• Citation: State v. Howard, 82 N.C. 623 (N.C. 1880)
• Decision Date: 31 January 1880
• Parties: STATE v. ALEXANDER HOWARD.

82 N.C. 623

STATE

v.ALEXANDER HOWARD.

Supreme Court of North Carolina.

January Term, 1880.

INDICTMENT for Murder removed from Sampson County and tried at Fall Term, 1879, of WAYNE Superior Court, before Eure, J.

The prisoner was charged with the killing of Babel Autrey, on the 24th of July, 1878. When the case was called for trial, and before a jury were selected and impaneled, the prisoner's counsel moved to discharge the prisoner on the ground that the transcript from Sampson county showed that the judge who tried the case, in continuing the term for the purposes of the trial beyond the limit of the regular term, had adjourned the court from Saturday night to Monday morning. (On the trial in Sampson the jury could not agree, and a mistrial was had by and with the consent of the prisoner.) And this the prisoner's counsel insisted was not an adjournment “from day to day” in compliance with the statute. Motion overruled and prisoner excepted.

In selecting the jury the prisoner challenged one of the special venire on the ground that he was disqualified by the act of 1879, ch. 200. The facts material to this exception are set out in the opinion of this court.

Evidence.--The state introduced Isaac Williams as a witness, and offered to prove a conversation with the prisoner which took place about twelve months before the homicide. The prisoner objected to this evidence as being too remote. The objection was overruled and the witness testified that the prisoner said: “don't you reckon if any one was to run in on old man Babel Autrey he would get a handful of money”? The prisoner excepted. There was evidence on the part of other witnesses that the deceased was robbed on the night of the homicide of a considerable amount of money, and that he was generally reputed to be a man of property and kept money in his house where he lived and where the homicide occurred.

The state then introduced Carlton Howard, an accomplice, who testified that about a week before the homicide he agreed with the prisoner to meet him on the premises of the deceased on the night of the homicide for the purpose of robbing him, and that in accordance with said previous agreement the witness and the prisoner did meet on said premises on that night, and he, the witness, committed the robbery while the prisoner was engaged in the murder of the deceased.

Hester Autrey, a witness for the state, testified that she saw the prisoner on the day of the night of the homicide come from the direction of his own house to the house of the deceased through the field, saw him stop near the house of the deceased and have a conversation with deceased (which on account of the distance of the parties from her she did not hear) and then the prisoner passed on through the premises and went out in the direction of the house of Carlton Sessoms, who was subsequently examined for the prisoner. She further testified that the prisoner came to the house of deceased unaccompanied by any one and left the premises by himself.

Carlton Sessoms testified, for the prisoner, that he saw the prisoner on the day of the night of the homicide at his (witness') house, that the prisoner came there about nine or ten o'clock in the forenoon of that day, and remained about a half hour, and that he came to his house from the direction of the house of the deceased. Here the prisoner offered to prove by this witness, that while the prisoner was at his house on that day he had a conversation with him, and in that conversation the prisoner told him the reason why he went to the house of the deceased that morning. The solicitor for the state objected, and evidence of this conversation was ruled out. Prisoner excepted.

The jury rendered a verdict of guilty. Rule for new trial discharged, motion in arrest overruled, judgment, appeal by prisoner.

Attorney General, for the State .

Messrs. Guthrie & Carr and E. T. Boykin, for prisoner .

ASHE, J.

The first exception was to the adjournment of the court from Saturday until Monday while the jury had the prisoner in charge. Sunday, according to the usages and practice of our courts, is not a juridical day, and it was altogether proper that the court should have been adjourned over from Saturday until Monday. There has been some instances in the judicial proceedings in this state where the courts have held their session on Sunday, but the cases are rare, and whenever it has been done, exception, we believe, has generally been taken to the course of the court, upon the ground that it could not legally sit on that day. But this court has held that in special cases ex necessitate the court might sit on Sunday. State v. Ricketts, 74 N. C., 187, and State v. McGimsey, 80 N. C., 377. The holding court on the Sabbath is not forbidden by the...