State v. Kinsauls

• Decision Date: 08 May 1900
• Citation: 36 S.E. 31,126 N.C. 1095
• Court: North Carolina Supreme Court
• Parties: STATE. v. KINSAULS.

126 N.C. 1095

36 S.E. 31

STATE.

v.KINSAULS.

Supreme Court of North Carolina.

May 8, 1900.

HOMICIDE—APPEAL — JURY — FINDING OF INDIFFERENCE—FAILURE TO EXHAUST CHALLENGES—EVIDENCE—CHARGES—EXCEPTIONS —FAILURE TO REQUEST INSTRUCTIONS—RECAPITULATION OF EVIDENCE—PRESUMPTION —REQUEST — REMARKS OF COUNSEL — VERDICT—MOTION FOR NEW TRIAL—MISCONDUCT OF JURY.

1. The finding of fact by the judge, on the trial of a criminal case, that a juror is indifferent, is not reviewable on appeal.

2. Where, on the trial of a criminal case, the prisoner fails to exhaust his peremptory challenges, his exceptions to jurors will not be reviewed on appeal.

3. Evidence for the state in a murder trial that the defendant had weapons in his possession is competent to show preparation for the crime.

4. An exception to the judge's charge to the jury in a criminal case "as given" is too broad to be available on appeal, under Code, § 550, authorizing the settling of bills of exception which shall embody exceptions to instructions, and providing that written exceptions shall be deemed conclusive of what they were on such settlement.

5. In a capital case, where the defendant only excepts to the charge "as given, " specific exceptions may be inserted nunc pro tune on appeal, with the assent of the attorney general.

6. Failure of a prisoner's counsel to ask for fuller instructions precludes the objection on appeal that fuller instructions were not given.

7. Where the record does not purport to contain the entire charge given on a criminal trial, and hence does not affirmatively show that the judge in charging the jury did not recapitulate the evidence, it will be presumed on appeal, in favor of the regularity of the trial, that the judge did recapitulate the evidence.

8. It is not error not to recapitulate the evidence in a charge given on a criminal trial, unless such a charge is requested and refused.

9. Where, on objection to the remarks of counsel for the state in a criminal trial, the judge promptly stops him, and cautions the jury not to consider his remarks, the court has done all in its power, and no error is committed.

10. A verdict, on a trial for murder, of "guilty of the felony of murder in the first degree." is substantially proper, and the addition afterwards by order of the court of the words, "in manner and form as charged in the bill of indictment, " is a mere formality, which does not prejudice the prisoner.

11. A motion for a new trial, after the close of a term, for misconduct of the jury, which was known at the time of trial, is too late to he available.

12. Where a jury attended church during a murder trial, with the prisoner's consent, and the preacher, in his sermon, cautions them to be careful, and, if the prisoner is guilty, to say so, and, if not. to say so, and exhorts them to do their duty before God and their country, and in his prayer prays for a fair and impartial trial for the prisoner, such circumstance does not constitute misconduct of the jury prejudicial to the prisoner.

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

Archie Kinsauls was convicted of murder in the first degree, and appeals. Affirmed.

John D. Kerr, for appellant.

The Attorney General, for the State.

CLARK, J. The exceptions to jurors were properly abandoned in this court. The finding of fact by the judge that a juror is indifferent is not reviewable. State v. Potts, 100 N. C. 457, 9 S. E. 657; State v. Fuller, 114 N. C. 891, 19 S. E. 797. Besides, other exceptions to jurors, if made, could not be reviewed, since the prisoner did not exhaust his peremptory challenges. State v. Hensley, 94 N. C. 1021; State v. McDowell, 123 N. C. 764, 31 S. E. 839; Wals. Dig. 281.

The only exception to evidence was thatwhich showed weapons in possession of the prisoner, which was competent to show preparation.

The sole exception to the charge was the "broadside" exception "to the charge as given, " which the unbroken decisions of this court, in accordance with the provision of the statute governing appeals (Code, § 550), hold inadmissible. State v. Moore, 120 N. C. 570, 26 S. E. 697; Wals. Dig. 149, 249. But in a capital case the attorney general will readily assent to the insertion of proper exceptions nunc pro tunc. State v. Huggins (at this term) 35 S. E. 606; State v. Wilcox, 118 N. C. 1131, 23 S. E. 928. The prisoner's counsel insists that the charge is defective, because it did not array the evidence, and present the contentions of the parties. The strict rule laid down in State v. Boyle, 104 N. C. 800, 10 S. E. 696, 1023, has since been overruled, and we find the charge a reasonable compliance with the statute. If the prisoner's counsel had desired fuller instructions he should have asked for them. State v. Edwards (at this term) 35 S. E. 540.

The prisoner further objects that the judge did not recapitulate the evidence. The...