State v. Mills

• Decision Date: 30 June 1830
• Citation: 13 N.C. 420
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JAMES MILLS.

13 N.C. 420

THE STATE

v.JAMES MILLS.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1830

FROM DUPLIN.

1. Co-defendants in an indictment cannot be witnesses for each other, unless they have been first acquitted or convicted, and this although their trials are to be had in different counties.

2. An indictment for a forcible trespass upon personal property, greater force must be averred than is expressed by the words vi et armis. The trespass must involve a breach of the peace, or directly tend to it, as being done in the presence of the prosecutor, to his terror or against his will.

3. Actual possession by the prosecutor must be averred; but an indictment which averred the legal possession of the prosecutor, and that the defendants with strong hand, unlawfully, violently and forcibly did seize, arrest and take from the prosecutor, was held sufficient.

The defendant was indicted for a forcible trespass. The indictment was as follows: "The jurors, etc., present that one Rhoda Waller of, etc. was on, etc., then and there lawfully possessed of certain negro slaves, named, etc., and the said R. W., being so possessed, Daniel Bradham, late of, etc;, James Mills, late of, etc., and Jesse Ballard, late of, etc., afterwards—to wit, on, etc., at, etc., with force and arms, and with a strong hand, at, etc., unlawfully, violently, forcibly, and injuriously, did seize, arrest, and take from the said R. W. the aforesaid negro slaves, and did then and there unlawfully, forcibly, and violently keep, hold, and maintain the possession of the said slaves to the great damage of, etc."

After not guilty pleaded by the defendants' Mills and Bradham

(Ballard not having been arrested), the cause as to Bradham was removed to an adjoining county. At the same term of the Court, Mills, being upon his trial, offered Bradham as a witness; but his Honor, Judge STRANGE, rejected him as incompetent. A verdict was returned for the State, when the counsel for Mills moved in arrest of judgment, because the indictment did not charge that the defendants had taken the slaves from the actual possession of the prosecutrix. The motionwas overruled by his Honor, and judgment entered up for the State, and the defendant appealed.

RUFFIN, J. There can be no doubt that an accomplice, merely as such, is a competent witness on either side. Hawkins, P. C, Book 2, ch. 46, sec. 18, states that it is no exception to a witness that he confesses himself guilty of the same crime, if he be not indicted for it. When indicted, however, he adds, accomplices are good witnesses for the King until they be convicted. I take it, the rule is perfectly established as thus laid down. It is found in all the text writers, and many adjudged cases. The very manner in which Hawkins states it would exclude the accomplice, jointly indicted, from testifying on behalf of his codefendant. He first says that an accomplice not indicted may be a witness for or against a prisoner, and then further remarks that accomplices, jointly indicted, may be witnesses against the prisoner. This excludes the idea that he can testify for him. It must be obvious that an accomplice indicted can only be called for the State by his own consent. For he never can be forced to give evidence upon an indictment in which he stands accused. If he cannot be compelled to testify against the prisoner because he himself is implicated, neither do I think, for the same reason, ought he to be permitted to give evidence for him. I do not know that his exclusion depends so much upon his direct and particular interest in the verdict touching his codefendant as upon a principle of public policy arising out of the presumption that it is dangerous to suffer one, apparently upon the record guilty of the same offense, to exculpate his associate in crime. For, after bill found, a defendant is presumed to be guilty to most, if not to all, purposes, except that of a fair and impartial trial before a petit jury. This presumption is sostrong that in the case of a capital felony the party cannot be let to bail. It seems likewise to have been the ground upon which the Courts have refused to hear them in exoneration of their companions more than of themselves. The force of the principle of association to elude, as well as to disregard and resist the law, is so powerful that an

honest and impartial relation cannot be hoped for. But whatever may have caused the rule, it is found...