State v. King

• Decision Date: 28 February 1882
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN L. KING.

86 N.C. 603

STATE

v.JOHN L. KING.

Supreme Court of North Carolina.

February Term, 1882.

INDICTMENT for an affray tried at January Term, 1882, of WAKE Superior Court, before Gilmer, J.

Appeal by defendant.

Attorney General, for the State .

Messrs. Argo & Wilder, for defendant .

SMITH, C. J.

The defendant and William Broadwell were indicted for an affray and for mutual assaults of each upon the other, and upon the trial the former was found guilty and the latter acquitted. The exceptions of the defendant presented in his appeal are to the rulings of the court in rejecting evidence on the trial before the jury. The absence of any statement of the facts of the transaction to which the excluded testimony may be deemed pertinent, is a serious impediment in the way of determining its competency and relevancy and passing upon the sufficiency of the exceptions; and it devolves upon the appellant to show the alleged errors in the rulings of the court, of which he complains.

1. The first exception is to the refusal of the court to allow the introduction of the written examination of one Smith, before the justice upon the preliminary bearing.

The witness had been summoned for the state, but failed to answer when called for by the solicitor, and (as the other defendant proved,) had stolen cotton and run away. Such testimony has been declared competent in this state when the witness is dead, or after search cannot be found; and perhaps the rule would have been extended to the case of a non-resident who was absent and beyond the jurisdiction of the court, as stated by Mr. WHARTON in his Law of Evidence, section 178. The cases are collected and the principle restated in State v. Grady, 83 N. C., 643. But the matter is now regulated by statute, and while the act recites the conditions on which the state may introduce the examination, we think the accused party, as he before had the right, so now, he may offer the evidence under like circumstances as is permitted to the state. Bat. Rev., ch. 33, § 34.

The statute authorizes the admission of the former testimony of the witness, taken by the examining magistrate, before the grand or petit jury, when the “accused was present at the taking thereof, and had an opportunity to hear the same and to cross-examine the deposing witness, if such witness be dead, or so ill as not to be able to travel, or by procurement or connivance of the defendant hath removed from the state, or is of unsound mind.” And so upon a fair construction of the act as modifying the pre-existing rule, the accused may use the testimony if the witness is dead or too ill to be present, or insane, or has removed from the state at the instigation or with the connivance of the prosecutor. It is apparent no foundation has been laid for the introduction of the evidence of the witness, who merely does not respond to the obligations of the subpœna, and is simply proved to have “ run away,” and not that any effort has been made to secure his presence.

“Proof of mere disappearance,” remarks the author to whom we have referred, in the absence of a regulating statute, “is not by itself enough to admit such testimony, if by due diligence the witness' attendance could have been secured,” and numerous cases are referred to in support of the proposition. The proposed evidence was therefore properly refused, under the provisions of the statute.

2. The appellant excepts to the ruling out of his own testimony, and that he was not allowed to state that in using the language imputed to him and admitted by himself, (and which is not set out in the record) he did not intend to bring about a breach of the peace--nor to give his reasons for striking his associate defendant, while he was permitted to detail all the facts and circumstances attending the difficulty--nor his motives in grasping Broadwell by the throat-- nor to repeat what he said to his father soon after the occurrence, not offered in corroboration of his own evidence, for which purpose no objection was made on the part of the state, but to bring out the reasons he then assigned for his conduct--nor to say that in using the offensive language to Broadwell he did not then have any idea it would lead to a fight.

This evidence all belongs to one class, and the contention is that it is competent to a defendant when charged with a criminal act to testify to his intent as a state or operation of his mind, outside of the act done, and self-exculpatory in its effect.

The proposition asserted in broad terms and sufficient to comprehend and sustain the exceptions to the rejected testimony, is in our opinion unsupported by authority or sound reason, and rests upon a misconception...