State v. Miller

• Decision Date: 30 June 1836
• Citation: 18 N.C. 500
• Court: North Carolina Supreme Court
• Parties: STATE v. MERRIL MILLER.

18 N.C. 500

STATE

v.MERRIL MILLER.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1836.

1. Where the defense of a person indicted for murder, as disclosed by his witnesses, consists of a justification, and the Judge, in his charge, takes it for granted that the homicide was committed by him, he does not thereby violate the Act of 1790 (Rev., ch. 452), forbidding the expression of his opinion as to the weight of evidence, because the justification necessarily admits the homicide, and its validity cannot be examined, except upon the supposition that it was committed by him who seeks to justify it.

2. Misconduct in a juror in a capital case, as a separation from his fellows, or eating or drinking without the permission of the Court, before delivering the verdict, held by RUFFIN. C. J., and DANIEL, J., to be a reason for applying to the discretion of the Judge, in the Court below, for a new trial, and not to render the verdict a nullity, and a venire de novo proper.

3. But per GASTON, J.—Any unauthorized and unexplained separation of a juror from his fellows, in a capital case, in law vitiates the verdict, and a venire de novo should be awarded. Minor irregularities are grounds for a new trial, addressed to the discretion of the Judge who presided at the trial.

4. The effect of a separation of the jury, before they return their verdict, and the difference between a new trial and a venire de novo, discussed and stated at length by RUFFIN, C. J., and GASTON, J.

THE prisoner was tried before Settle, J., on the last circuit, at WAKE, for the murder of John Whitaker. On the trial, the witnesses for the prosecution swore,that the prisoner came, about 9 o'clock A. M., with a stick, to a house where the deceased was sitting, and there a fight took place between the prisoner and the deceased, in which the prisoner fell, with the deceased upon him—that immediately afterwards the son of the prisoner came up, when a separation took place, and the deceased retired, but was pursued by the prisoner and his son, and the mortal blow given. Upon the defense, one Wood all was called, who deposed, that soon after sunrise of the same morning, he saw the prisoner and the deceased in company, when the deceased struck the prisoner with a small stick; upon which the prisoner took it from him and threw it away, saying, that he did not wish to injure the deceased. This witness stated that the prisoner greatly exceeded the deceased in bodily strength.

"After the evidence was closed on both sides, some of the jury desired leave to retire, and the Judge, without any

objection being made by the prisoner or his counsel, put the whole jury in charge of the sheriff, and permitted them to retire together. The jury accordingly retired out of the courthouse in charge and custody of the sheriff. A few minutes afterwards the sheriff returned into the court-house with eleven of the jury only. Thereupon the clerk was directed to call over the names of the jury, when Henry Gorman, the juror whose name was third upon the list, did not answer; but in less than two minutes, he returned into the courthouse, when the Judge expressed his strong disapprobation of the juror's conduct; but upon the juror's stating that he was obliged to step aside to obey the calls of nature; and some of the bystanders testifying that the juror was a good, well-meaning man, and would not knowingly, on any consideration, have violated a rule of law or of the Court, no punishment was indicted by the Court. The jurors then took their seats in the jury box, and the trial proceeded, without objection on the part of the prisoner or his counsel. His Honor, after stating to the jury the leading principles by which a homicide was mitigated from murder to manslaughter, proceeded as follows: "That they (the jury) would in-quire why it was, or how it happened, if they believed the witness Wood all, who stated the great superiority of bodily power the prisoner possessed over the deceased, that he was at the bottom in the fight and scuffle, and continued there until the deceased disengaged himself from the prisoner and attempted to go off, without using the stick in the meantime, which he, the prisoner, held in his hand. That if they believed it was with a view to make the deceased strike, so as to afford a provocation to take his life, it would be no extenuation of the prisoner's offense. And that if they collected from his testimony that the prisoner was not laboring under a strong excitement, immediately after he and the deceased separated, the law did not allow him to raise himself up into a gust of passion, and pursue the deceased, at the time and place stated by the other witnesses, to take life, and allege that his offense was reduced to manslaughter by the provocation."

The prisoner was convicted, and a new trial was moved for.

1. Because his Honor had, in his charge, violated the Act of 1796 (Rev., ch. 452), restraining a judge from

expressing, in his charge to the jury, an opinion that a fact was proved.

2. Because the jury, after being charged with the prisoner's case, separated before they agreed in their verdict, and gave it in to the Court.

A new trial having been refused, the counsel for the prisoner then "offered to prove that while the juror Henry Gorman was absent from the body of the jury he visited the store of W. J. Lougee & Co., to get a drink of spirits, which (store) stands at the distance of one hundred or one hundred and twenty yards from the court-house, and in view of it"—which the Court refused to receive. The place to which the absent juror went was about seventy or eighty yards from the court-house, but out of the way and retired. Judgment of death being pronounced, the prisoner appealed.

RUFFIN, C. J. One of the objections on which the motion for a new trial is founded is, that thepresiding Judge expressed or intimated an opinion that certain facts were proved. This is supposed to have been done in those parts of the charge, in which the Judge said to the jury that "they would inquire why it was, or how it happened, if they believed the witness Woodall, who stated the great superiority of bodily power the prisoner possessed over the deceased; that he was at the bottom in the fight and scuffle, and continued there until the deceased disengaged himself from the prisoner, and attempted to go off, without using the stick in the meantime, which the prisoner held in his hand; that if they believed it was with a view to make the deceased strike him, so as to afford a provocation to take his life, it would be no extenuation of the prisoner's offense; and that, if they collected from his testimony that the prisoner was not laboring under a strong excitement, immediately after he and the deceased separated, the law did not allow him to reason himself up into a gust of passion, and pursue the deceased, at the time and place stated by the other witnesses, and take his life, and allege that his offense was

reduced to manslaughter by the provocation." It is said that in these observations the Judge assumed as facts that the witnesses for the State had truly testified: first, that the prisoner did kill the deceased at the time and place mentioned by them; and, secondly, as to the circumstance, that in the scuffle the prisoner fell at the bottom. To appreciate the force of these objections, it is necessary to recur to the nature of the testimony of Woodall, and the defense of the prisoner as founded on it. His testimony related to transactions between the prisoner and the deceased, in the morning of the day on which the homicide happened, and was relevant only as it tended to show a provocation then received, which, in law, would mitigate the crime to manslaughter. That must have been the point contended for in defense. The Judge was examining that point, and advising the jury of the law on it. In the very nature of it, and for the purposes of that inquiry the death of the party is presupposed; for every justification or excuse admits that to have been done which is sought to be justified. Theobjection, therefore, does not apply to the conduct of the Judge more than to the defense of the prisoner himself. The jury could not have been misled, for with any intelligence, they must have understood that the fact of the homicide must be established to their satisfaction; and that both the defense of the prisoner, in reference to the provocation, and the charge of the Judge, related to a question which would be consequent on their determination of the main point of the death. On the general character of the case, including that principal point, the Court had previously instructed the jury; and as no exception is taken to that part of the charge, it must be understood by us that the Judge did not, at that time, intimate his opinion upon the credit to which the witnesses, who deposed to the deed itself, were entitled. Having, in a proper manner, performed his duty thus far, he could not discuss the point raised by the testimony of Woodall, but in connection with a supposed deed, such as the other witnesses had represented. But the jury could not have inferred therefrom that the Judge held the fact to be established for any other purpose than that to which he was then calling their attention.

We think the other part of the objection is equally untenable. The witnesses for the State deposed to all the circumstances of the fatal rencounter; among which was the one that when the parties went out of the house, a scuffle ensued, the prisoner fell, and the deceased on him. It is said the Judge assumed this to be true, and in that respect erred. If that assumption be made, it is manifest that it could not be to the prejudice of the prisoner. We attach, indeed, very little importance to the circumstance in itself, for in a scuffle the stronger combatant may come to the bottom from many accidental causes, and not by design on his part, or the superior advantage or skill of his adversary. But it is...