State v. Kilgore
| Decision Date | 31 October 1885 |
| Citation | 93 N.C. 533 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. LEWIS KILGORE, Jr. |
OPINION TEXT STARTS HERE
Indictment for MURDER, tried before Gilmer, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Henderson county.
There was a verdict of guilty, and from the judgment thereon the defendant appealed. The facts appear fully in the opinion.
The Attorney General, for the State .
No counsel for the defendant.
The indictment consists of three counts, in the first of which the prisoner, Lewis Kilgore, Jr., is charged as principal in the first degree, with committing the criminal act of the murder of Matt. Henderson; and Henry Robinson and John Corpening as being present, aiding and abetting, and, in the other counts the said Henry Robinson and John Corpening, are severally charged with the homicide, and the others as aiding and abetting. On their plea of not guilty, they were jointly tried, and a verdict rendered convicting the prisoner Kilgore, and acquitting the others of the imputed offence. From the judgment rendered against the former, he appeals to this Court. We have not been favored with an argument on his behalf, and have therefore carefully examined the exceptions found in the record, and scrutinized the proceedings, to ascertain if there are any just grounds for the appeal, and any error committed which entitles him to another jury.
Exception 1. A juror of the special venire, after the perusal of the regular panel, was challenged by the prisoner, and cause assigned, in that he had formed and expressed an opinion unfavorable to him. Upon his examination, the juror so stated, but added that his mind was free and unbiassed; that the opinion was formed upon mere rumor, and he had never heard any of the witnesses speak of the matter; and that he felt that he could say without hesitation, that he could hear the evidence and render a verdict without being in any degree influenced by what he had heard, or himself said. The Court adjudged the juror indifferent and overruled the challenge, and thereupon he was peremptorily challenged by the prisoner. Triers are now dispensed with, and the Judge determines the facts as well as the legal sufficiency of the challenge based upon them. The Code §§405 and 1199.
The ruling of the Court is correct in law, and the finding of unindifferency conclusive and unreviewable. State v. Collins, 70 N. C., 241; State v. Wincroft, 76 N. C., 38; State v. Garland, 90 N. C., 668.
Exception 2. Another juror tendered and challenged, was objected to by the prisoner on the ground that he had served on the jury in the Court, within the two preceding years. The challenge was disallowed by the Court.
Exception 3. Another juror was challenged by the prisoner, and the cause therefor assigned, that he had not paid his taxes for the preceding year. This challenge was also overruled. These exceptions to jurors of the special venire, rest upon the same substantial basis, and may be considered together. The jurors, of whom these objected to are part, were summoned under a special writ of venire facias, issued under §1738 of The Code, the only qualifications prescribed for which are, that they shall be freeholders of the county wherein the trial is had. This is expressly decided in the cases of the State v. Garland, 90 N. C., 668, and State v. Whitfield, 92 N. C., 831. Neither exception to the ruling is tenable.
The evidence produced by the State to prove the prisoner's guilt, was circumstantial and voluminous, but unnecessary, to be set forth, further than to present the fourth exception of the prisoner:
Exception 4. When the sheriff arrested John Corpening, the alleged associate in crime of the prisoner, and so charged in the indictment, the latter said, as testified by the sheriff, “why don't you arrest Henry Robinson?” (the other accused party). “I left there” (the place of homicide) “at 2 o'clock, and left Henry and Lewis there.” The prisoner objected to the admission of this declaration, but the Court allowed it to be heard, remarking twice,...
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State v. Levy
...what they were when the following cases were decided; State v. Carland, 90 N.C. 668; State v. Whitfield, 92 N.C. 831; State v. Kilgore, 93 N.C. 533; State v. Starnes, 94 N.C. 973; State v. Powell, 94 N.C. 965; State v. Cody, 119 N.C. 908, 26 S.E. 252, 56 Am. St. Rep. 692. It should be obser......
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State v. Bohanon
... ... defendant, and the court found upon the evidence that he was ... indifferent. The findings of fact as to indifference have ... been held not to be reviewable in this court. State v ... Ellington, 29 N.C. 61; State v. Collins, 70 ... N.C. 241, 16 Am. Rep. 771; State v. Kilgore, 93 N.C ... 533; State v. Potts, 100 N.C. 457, 6 S.E. 657; ... State v. De Graff, 113 N.C. 688, 18 S.E. 507; ... State v. Fuller, 114 N.C. 885, 19 S.E. 797; ... State v. Kinsauls, 126 N.C. 1096, 36 S.E. 31; ... State v. Register, 133 N.C. 747, 46 S.E. 21. The ... case of State v. Potts, 100 ... ...
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State v. Williams
... ... this court are to the effect that it is no cause for ... challenge that a special venireman had served upon the jury ... within two years. State v. Carland, 90 N.C. 668; ... State v. Whitfield, 92 N.C. 831; State v ... Kilgore, 93 N.C. 533; State v. Starnes, 94 N.C ... In the ... fourth exception, when the juror Frazelle was challenged for ... cause on the ground that he had served on the jury within the ... past two years, and this cause for challenge was disallowed, ... counsel for the ... ...
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State v. Banner
... ... and hear the evidence and charge of the court and render a ... verdict as though he had never heard of the case. "The ... court finds that the juror is a fair juror," and the ... prisoner excepted. The ruling was correct. State v ... Kilgore, 93 N.C. 533; State v. Green, 95 N.C ... 611; State v. De Graff, 113 N.C. 688, 18 S.E. 507 ... Besides "the finding that the juror is indifferent is a ... matter in the discretion of the trial judge, and not ... reviewable in this court." State v. Register, ... 133 N.C. 751, 46 S.E. 21; ... ...