State v. McNair
| Decision Date | 31 October 1885 |
| Citation | 93 N.C. 628 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. GEORGE MCNAIR. |
This was an indictment for Rape, tried before Gudger, Judge, and a jury, at Spring Term, 1885, of the Superior Court of ONSLOW county.
The jury returned a verdict of guilty, and the Court gave judgment thereon against the prisoner, from which he appealed.
The case is stated in the opinion of the Court.
Attorney General, for the State .
No counsel for the defendant .
The prisoner is charged with having committed a rape upon the body of Lizzie A. Edins, in an indictment containing two counts, the one being silent as to her age, the other alleging it to be under ten years. Upon the plea of not guilty, the prisoner was put on trial before a jury, at Spring Term, 1885, of Onslow Superior Court, and convicted of the offence. Thereupon, sentence of death being pronounced, the prisoner appeals to this Court. The record discloses two exceptions to the rulings of the Court, which we are required to review and determine.
1. The prisoner's counsel proposed to prove what was said by the prisoner to the officer, who made the arrest, in reference to the imputed crime. There had been no charge made against him by the arresting officer, nor had the State shown any communication between them, or between the prisoner and any one else on the subject. The evidence, on objection from the Solicitor, was disallowed as incompetent, and the prisoner excepted. Similar evidence was afterwards offered, and upon the same grounds rejected.
It is settled by repeated adjudications, that declarations of a prisoner, made after the criminal act has been committed, in excuse or explanation, at his own instance, will not be received; and they are competent only when they accompany and constitute part of the res gestæ.
“As evidence,” remarks RUFFIN, C. J., State v. Tilly, 3 Ired, 424; State v. Hildreth, 9 Ired., 440. To the same effect are State v. Huntley, 3 Ired., 418; State v. Vann, 82 N. C., 632; State v. Reitz, 83 N. C., 634; State v. Brandon, 8 Jones, 463.
There are no repugnant rulings to be found in State v. Patterson, 63 N. C., 520, and State v. Worthington, 64 N. C., 594. These cases simply decide that where a person is charged with an offence, and this is produced as evidence against him, the accused has a right to have what he said in response to the charge, heard by the jury in repelling the inference of admitted guilt.
But it is not shown what the declarations proposed to be proved were, so that it cannot be seen that they were at all relevant to the issue, and that there is error in the rejection. To sustain the exception this should be made to appear. State v. Dula, Phil., 437; State v. Worthington, supra; Street v. Bryan, 65 N. C., 619; Knight v. Killebrew, 86 N. C., 400, and cases there cited.
II. The prisoner set up as defence, that he was under fourteen years of age at the time of the alleged criminal act, and testimony was offered upon this issue, the mother of the prisoner rendering it somewhat uncertain whether he was of that age, and a number of witnesses for the State placing it at about seventeen years.
In instructing the jury upon this part of the defence, the Court used this language: “It is for you to say whether he is under fourteen years of age or not, being, as you see him before you, grown to the stature of manhood.” Upon a suggestion from the Solicitor that the remark might be misconstrued, as intimating an opinion as to the prisoner's age, the Court, not conceding that what was said was susceptible of such a construction, recalled the jury, as they were retiring, and said to them: “What the Court said to them in reference to the size and appearance of the prisoner, was not to be taken by them as indicating the opinion of the Court as to the prisoner's age, but that they had a right to consider his size and appearance to aid them in coming to a conclusion as to his age.”
To this charge and action of the Court, exception was taken by the prisoner.
If the language first employed was obnoxious as the intimation of an opinion upon a disputed fact, and we do not admit that it was, the objection is removed by the subsequent explanatory statement made before the jury entered upon their deliberations. This was a prudent and proper course on the part of the presiding Judge.
“It is undoubtedly proper and in the power of the Court,” observes RUFFIN, C. J., in McAllister...
To continue reading
Request your trial
-
State v. Anderson
...exceptions unavailing. State v. Rowland, 205 N.C. 544, 172 S.E. 182; State v. Brewer, 202 N.C. 187, 162 S.E. 363, 81 A.L.R. 1424; State v. McNair, 93 N.C. 628. many of the exceptions to the charge are gossamery and attenuate in character. It would be supererogatory to consider them seriatim......
-
State v. Gray
...v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967), relying on 1 Stansbury's North Carolina Evidence § 119 (2d ed. 1963). Cf. State v. McNair, 93 N.C. 628 (1884). While to decide this case we need not determine whether the admission of defendant's age was technical error, we deem it advisable t......
-
State v. Riordan
...under such age when the alleged offense was committed the burden is upon him to establish that fact by evidence." 10 Enc. Ev. 580; State v. McNair, 93 N.C. 628; Peckham v. People, 32 Colo. 140, 75 P. People v. Ah Yek, 29 Cal. 575; State v. Knighten, 39 Ore. 63, 87 Am. St. Rep. 647, 64 P. 86......
-
Newbern v. Hinton
...Street v. Bryan, 65 N. C. 619; State v. Purdie, 67 N. C. 326; Knight v. Killebrew, 86 N. C, 402; Sumner v. Candler, 92 N. C. 634; State v. McNair, 93 N. C. 628; State v. Bhyne, 109 N. C. 794, 13 S. E. 943; Baker v. Norfolk & S. R. Co., 144 N. C. 40, 56 S. E. 553; Boney v. Atlantic Coast Lin......