State v. Kimbrough

• Decision Date: 30 June 1830
• Citation: 13 N.C. 431
• Parties: THE STATE v. ELIJAH W. KIMBROUGH.
• Court: North Carolina Supreme Court

13 N.C. 431

THE STATE

v.ELIJAH W. KIMBROUGH.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1830

FROM WAKE.

1.Secondary evidence of papers in the possession of a party to a cause is admitted, after notice to produce the originals, not because the originals are not produced, but because it is the best evidence in the power of the adverse party.

2.This principle extends to criminal as well as civil cases; and the rule that no man is bound to criminate himself only protects the accused in the possession of the originals, and prevents him from being compelled to produce them.If, after notice, he objects to their production, the State has a right to prove their contents.

3.A notice to produce on a trial to be had "this day" is not confined to a trial on that day, but extends to a trial at any subsequent term.

4.Whether persons who have an interest in property expectant upon the life-estate of another are competent witnesses for the prosecution in a capital charge against the tenant for life.Qu.?

5.But if their interest does not exclude them, it may, however remote and contingent, whether legal or equitable, be assigned or released, so as to render them competent.

6.A judge may, in his discretion, adjourn a capital trial over until the next day without the consent and against the will of the prisoner.

7.In the record of an indictment it is proper to state it as taken "at a Superior Court of law," and not "at a Superior Court of Law and Equity."

8.In a record which states that "at a Superior Court begun, etc., present the Hon. A. B., Judge," it will be intended that the judge was present in his official character.

9.The manner in which inferior Courts exercise their powers must appear upon the record of their proceedings—no intendment is made to support their acts—but Superior Courts are supposed to do everything in the prescribed manner and form.Therefore, where it appeared on this record of the Superior Court, that a grand jury was empaneled, but it was not stated that they were sworn, upon a motion in arrest of judgment made in this Court, it was held sufficient.

The record certified in this Court was as follows:

"Be it remembered that heretofore—to wit, at a Superior Court of Law, begun and held for the county of Wake, at, etc., on the first Monday after the fourth Monday of September, 1829; present, the Honorable Willie P. Man gum, Judge; W. R. H., sheriff, and returns the venire facias to him directed, endorsed, etc.Upon balloting, the following persons were drawn to serve as jurors—to wit: William Peace, foreman, etc.

"A bill of indictment was preferred before our said grand jury against Elijah W. Kimbrough, which is in the following words and figures— to wit:

"The jurors for the State, upon their oath, present that Elijah W. Kimbrough, late, etc., not having the fear, etc., but being moved, etc., on, etc., in and upon one John Davis, in the peace, etc., felonously, wilfully, and of his malice aforethought, did make an assault, and that the said E. W. K., a certain rope about the neck of the said J. D., then and there felonously and wilfully and with malice aforethought, did fix, tie and fasten, and that the said E. W. K., with the rope aforesaid the said J. D. then and there felonously and wilfully and of his malice aforethought, did drag, pull, choke strangle, and dislocate the neck; of which said dragging, pulling, choking, strangling and dislocation of the neck, he, the said J. D., then and there instantly died.And so the jurors aforesaid, upon their oath aforesaid, do say that the said E. W. K., in, etc., the said J. D. in manner and form aforesaid, felonously and wilfully, and of his malice aforethought, did kill and murder, against the peace etc.

"And the jurors aforesaid, upon their oath aforesaid, do further present that the said E. W. K., with divers other persons, etc., afterwards, to wit, etc., not having the fear, etc., in and upon the said J. D. in the peace, etc.,

felonously, wilfully, and of their malice aforethought, did make an assault, and that the said E. W. K., a certain rope about the neck of the said J. D. then and there felonously, wilfully, and of his malice aforethought, did fix, tie and fasten; and that the said E. W. K., by means of the said rope, the said J. D. then and there felonously, wilfully, and of his malice aforethought, did drag, pull, choke and strangle; and that the said E. W. K., with a certain drawn dagger, being part of a walking cane, etc., which he, the said E. W. K., in his right hand then and there had and held, the said J. D. in and upon the forepart of the belly and divers other parts of the body of the said J. D. then and there felonously, wilfully, and of his malice aforethought, did strike, thrust and penetrate, giving to the said J. D. then and there, with the dagger aforesaid, in and upon the aforesaid forepart of the belly and divers other parts of the body of the said J. D. several mortal wounds of the breadth of one inch, and of the depth of six inches, as well of which pulling, dragging, choking and strangling, as also of the striking, thrusting and penetrating, etc., he, the said J. D., from, etc., until, etc., didlanguish, etc., on which, etc., the said J. D., in, etc., of the pulling, dragging, choking and strangling, as well as of the mortal wounds, inflicted as aforesaid, died; and that divers other persons, etc.And so the jurors, etc., do further say that the said E. W. K., and divers other persons the said J. D. then and there in manner and form last aforesaid, felonously, wilfully, and of their malice aforethought, did kill and murder, against the peace, etc."

"At the autumn term aforesaid of our said Court the foregoing bill of indictment was returned into open Court, endorsed, 'A true bill, Wm. Peace, foreman.'"

The record then set forth the arraignment of the prisoner and his plea of not guilty; the continuance of the cause, the opening of the ensuing term; "present, the Honorable James MARTIN, J.," and the impaneling of a jury; that at a quarter past 8, p. m., his Honor suggested, as the examination of the testimony could not be closed that night, the propriety of an adjournment; that the Attorney-General and the counsel for the prisoner not being able to agree upon the time of an adjournment, the latter objected and insisted that the trial should then proceed, but that his Honor, notwithstanding the objection of the prisoner, adjourned the trial until the next day.

Prom the case attached to the record it appeared that two witnesses, Adolphus Davis and Ezra Gill, were offered by the Attorney-General and objected to by the counsel for the prisoner, who, to sustain their objection, proved that Davis was a son of the deceased, and that Gill had married one of his daughters; that by a decree of the Supreme Court made in a cause wherein the prisoner was plaintiff and the deceased and his wife defendants, Kimbrough v. Davis, 16 N. C., 71, certain slaves were settled upon the prisoner for life, with a remainder, in case the prisoner should die without issue, to the children of the deceased; and further, that the prisoner was an unmarried man.To obviate this objection, the witnesses executed and delivered to the Clerk of the court, for the benefit of the other children of the deceased, a deed, whereby "in consideration of the love and affection which we haveand bear unto the said, etc. (naming the other children), and for the further consideration of the sum of ten dollars, to us in hand paid, we have released, conveyed, assigned, and quit claimed all*our interest which we now have, or may upon the happening of the contingency set forth in the said decree hereafter have, in and to" the negroes to the said children.

The counsel for the prisoner still objected that the witnesses were incompetent by reason of their interest, but his Honor, holding that the witnesses had either divested themselves of all interest in the event, or that they had done all in their power to divest themselves, overruled the objection, and the witnesses were examined.One of the witnesses for the prosecution, in the course of his examination, stated that he met a negro after night and about the time the homicide was supposed to be committed.The counsel for the prisoner proposed to examine him as to the declarations of the negro made at that time.The Attorney-General objected to the question, and his Honor sustained the objection, because the declarations were apparently no part of the res gestae.

The Attorney-General then proved that the prisoner was in possession of sundry papers, and had been served with the following notice:

Wednesday Morning, 7 Oct., 1829.

You are notified to produce on your trial this day the following papers (describing them) or I shall give parol evidence of their contents.

R. M. S., Attorney General.

Secondary evidence of the contents of the papers mentioned in the notice was offered by the Attorney-General.The counsel for the prisoner objected to the sufficiency of the notice, because the notice was to produce the papers on 7 October, 1829, and not generally at the trial; and contended that it was good only for the trial which was contemplated at the preceding term.But his Honor held the noticesufficient to authorize the introduction of secondary evidence, if the prisoner declined producing the originals.The counsel for the prisoner then objected to the secondary evidence, contending that as the prisoner was not obliged to furnish evidence against himself, he was not bound to produce the papers, and as the evidence offered was not the best, while the originals were in existence, it was not admissible.But his Honor overruled the objection, and admitted the evidence.

The prisoner was convicted, and judgment of death being pronounced and execution awarded, the prisoner appealed.

The Attorney-Generalargued in support of the judgment of the Superior Court.

HENDERSON, C. J.It is contended in the very able argument for the defendant...