State v. Huggins

• Decision Date: 10 April 1900
• Court: North Carolina Supreme Court
• Parties: STATE v. HUGGINS et al.

35 S.E. 606

126 N.C. 1055

STATE

v.HUGGINS et al.

Supreme Court of North Carolina.

April 10, 1900.

CRIMINAL LAW—APPEAL—LOSS OP EVIDENCE —NEW TRIAL—SUFFICIENCY OP EVIDENCE—EXCEPTION.

1. Where the evidence, which the trial judge ordered to be sent up as a part of the case on appeal, on which the only question presented was whether there was sufficient evidence to go to the jury, was lost by the carelessness of some one, a new trial must be granted to defendants.

2. The exception that there was not sufficient evidence to go to the jury cannot be considered on appeal unless taken before verdict.

Appeal from superior court, Lenoir county; Bryan, Judge.

Fin Huggins and others were convicted of murder in the second degree. Defendants Johnson and Pitman appeal. New trial ordered.

T. C. Wooten, for appellants.

The Attorney General and Brown Shepherd, for the State.

CLARK, J. The prisoners Johnson and Pitman appeal from a conviction of murder in the second degree. The only question presented is as to whether there was any evidence, as to them, to go to the jury. The judge ordered the evidence to be sent up as a part of the case on appeal, but, by the almost criminal carelessness of some one, it has been lost; and the county of Lenoir will be put to the expense of another trial, which must be granted. Ritter v. Grimm, 114 N. C. 373. 19 S. E. 239; Clemmons v. Archbell, 107 N. C 653, 12 S. E. 572; State v. Parks, 107 N. C. 821, 12 S. E. 572; Owens v. Paxton, 106 N. C. 480, 14 S. E. 345. When court papers are thus lost, the matter should in every instance be rigidly investigated, and the responsibility fixed.

The case on appeal does not clearly show that the exception that there was not sufficient evidence to go to the jury was taken before verdict If it was not, the exception could not be considered, and the failure to send up the evidence would be immaterial, so far as the appeal is concerned. This has been well settled. State v. Harris, 120 N. C. 577, 26 S. E. 774, and numerous eases there cited; State v. Wilson, 121 N. C. 650, 28 S. E. 416. But the attorney general, from the nature of this case, and following the precedent set by his predecessor in State v. Wilcox, 118 N. C. 1131, 23 S. E. 928, consents that the exception may be treated as having been made before verdict. New trial