State v. Miller

• Decision Date: 30 June 1876
• Citation: 75 N.C. 73
• Court: North Carolina Supreme Court
• Parties: STATE v. HAMAN MILLER.

75 N.C. 73

STATE

v.HAMAN MILLER.

Supreme Court of North Carolina.

June Term, 1876.

A defendant, under an Act of Assembly, has a right to have more than one of his counsel, or all that represent him, heard by the Judge and jury in his defence, upon his trial in the Superior Court. The presiding Judge has no authority to refuse to hear but one, or to restrict the counsel in their remarks, to any particular length of time.

Can a Judge of the Superior Court imprison a defendant, convicted of an assault with intent to kill, in the County Jail for five or more years. Quere?

( State v. Collins and Blalock, 70 N. C. Rep., 307, cited and commented on.)

INDICTMENT, for an Assault, with intent to kill, tried before KERR, J., at Spring Term, 1876, of RANDOLPH Superior Court.

At the conclusion of the evidence, his Honor remarked that he would hear but one of the prisoner's counsel, he being represented by three. One of the counsel thereupon addressed the jury, and at the conclusion of his remarks, another of the counsel arose and stated to the Court that, in order to make a proper presentment of the defendant's case, it was necessary that another of the counsel should address the jury, and asked permission so to do. The Court refused to hear the counsel. The prisoner excepted.

There was a verdict of guilty, and motion for a new trial. The motion was overruled, and the prisoner appealed.

Attorney General Hargrove, for the State .

Tourgee, for the prisoner .

READE, J.

Anciently, and until lately the Judge, holding his Court, was the principal personage. He was clothed with the insignia of dignity, and represented majesty--the majesty of the law. It is so now to some, but not to the same extent. We have no disposition to enter upon the discussion, whether the change is for the better or for the worse. It may still be said that the Judge holds his Court as a driver holds the reins, (Webster) to govern, guide, restrain, except where he is himself restrained by law.

The restraints which have been put upon the Judges in this State have been very few. Some twenty-five years ago a Circuit Judge restrained a lawyer from arguing the law to the jury, suggesting that the argument of the law ought to be addressed to the Court, as the jury had to take the law from the Court. Umbrage was taken at that, and the Legislature passed an act allowing counsel to argue both the law and the facts to the jury.

And again, some two years ago, a Circuit Judge, in a criminal case, restricted the prisoner's counsel to one hour and a half in addressing the jury, allowing two of the counsel to divide that time between them. From that ruling, there was an appeal to this Court. We expressed our disapprobation with its exercise in that case, but still we held that it was a power vested in the presiding Judge, and that we could not control its exercise. State v. Collins and Blalock. And thereupon the Legislature passed an Act, as follows: “That any counsel appearing in any civil or criminal case in any of the Courts of this State shall be entitled to address the Court or the jury for such a space of time as in his opinion may be necessary for the proper development and presentation of his case.”

That is about as broad as language can make it. Any counsel appearing * * * * * may address either the Court or the jury, as long as he pleases.

In the case before us, his Honor, upon closing the testimony, remarked that he would hear but one counsel for the defence. There were three counsel ““appearing” for the defence, and they insisted that it was necessary that two of them should be heard; but his Honor refused. The question is, whether the defendant had the right to have two of his counsel address the Court and jury, or whether it was discretionary with his Honor to refuse to hear more than one.

Nothing can be clearer from the language of the act, and from the history of the legislation upon the subject, than that it was the intention of the Legislature to give to persons, charged with crime, the full benefit of counsel. Indeed, it is a Constitutional privilege. Precisely how to allow this privilege, without the chances of occasional abuse, may be found to be difficult, if not impossible. It certainly cannot be supposed to be the policy of the Legislature to embarrass the Courts so that they cannot dispatch business. Nor can it be supposed that it would, from any pique, subject the Judges to indignity. What we have to suppose is, that it is to be left to the discretion of counsel, instead of to the discretion of the presiding Judge, how they shall address themselves to the Court and jury. It must be left either to the Judge or the counsel; and the Legislature has left it with the counsel. It may be that the confidence is not misplaced. But one instance is recorded (see dissenting opinion in State v. Collins and Blalock) where any counsel has felt himself at liberty to abuse his privileges to the obstruction of the due administration of the law. And that was before the profession had many of the advantages which they now possess; and it may be before it was fully known that “we cannot do evil that good may come of it.” At any rate, the law is plain, and the experiment has to be made whether it is prudent to entrust the discussion in the Courts to the counsel instead of to the Judge.

It is suggested that the control of the subject is divided between the Court and the counsel--that the Court may limit the number of counsel speaking to one, and then that one may speak as long as he pleases.

The foundation for this suggestion is Rev. Code, chap. 31, sec. 15. “The plaintiff or defendant may employ several attorneys in his case,...