State v. Moore
| Decision Date | 04 November 1889 |
| Citation | 10 S.E. 183,104 N.C. 743 |
| Parties | STATE v. MOORE. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Guilford county; BYNUM, Judge.
J. T Morehead, for appellant.
The Attorney General, for the State.
The prisoner is charged with murder, and the following is a copy of the indictment: " Upon his arraignment the prisoner pleaded to this indictment "not guilty." On the trial the jury rendered a verdict of guilty. Thereupon he moved in arrest of judgment, but the court overruled the motion, and gave judgment of death against him, from which he appealed to this court, having assigned errors.
On the trial, in the cross-examination of a witness by the prisoner's counsel, the latter put to this witness a question to which the solicitor for the state objected. The prisoner's counsel at once began to state to the court what evidence he desired and expected to elicit. The solicitor objected to his making his statement in the presence of the jury, and requested the court to send it out of the court chamber until the counsel could make his statement. The court granted this request, sending the jury out in charge of an officer, sworn specially, as prescribed by the statute, (Code, § 3315, par. 22.) This is assigned as error. We think the court had discretionary authority to grant the request, as it did do. It may be that the question would elicit incompetent evidence if allowed, and that the mere statement of it, as proposed, in the presence of the jury, might make, or tend more or less strongly to make, a false or improper impression on the minds of the jurors, or some of them. It is the province of the court to prevent such possible evil when it can properly, and thus help to secure a fair and impartial trial. It must judge of the necessity for such an unusual step, and its exercise of a sound discretion in doing so would not, ordinarily, be the subject of review here. Such cautionary practice cannot, of itself, prejudice the state or the prisoner. We cannot see how it could; but if it should be made to appear probable that by some untoward event the prisoner was prejudiced thereby, the court would promptly interfere for his protection, and in such case, if it should refuse to do so, its action in such refusal might be the subject of review. Neither the state nor the prisoner has the right to have the benefit of false impressions made upon the minds of the jurors, and it is the duty of the court to prevent such impressions, as far as it can do so consistently with the course of orderly procedure. The court should exercise such authority only when it deems it important so to do, and it should be careful to see that the jury, during its absence, is in the charge of a faithful officer of the court, duly sworn. While such practice has not been common, it is within our knowledge, and that of many gentlemen of the bar of large experience, that the judges of the superior courts have frequently exercised such authority without injustice to parties, and, in some instances, in aid of the due administration of justice.
A policeman was examined as a witness for the state. On the cross-examination of this witness the prisoner's counsel proposed to prove by him that on the night of the homicide he had arrested the prisoner for an assault upon his own wife; that afterwards, on the same night, this witness arrested him for the alleged murder of the deceased, not telling at first why he did so; that the prisoner remonstrated with him as to the second arrest, saying that he had already given his bond to appear next day, and manifested surprise at the second arrest. On objection the court excluded the proposed evidence, and the prisoner excepted. This exception is without force. What the prisoner said to the witness is not part of the res gestæ, and he could not be allowed thus to make evidence in his own behalf. What he said to the witness may have been a mere device to mislead the officer, and help to shield himself from justice.
Another witness for the state gave evidence of a noisy, clamorous, and disgraceful quarrel between the prisoner and his wife in their own house on the night of the homicide, the deceased being partly the subject of the quarrel; that she was present, close to the prisoner's house pending that quarrel; that the prisoner saw her there, cursed and threatened to kill her that night; that he followed her, keeping a few steps from her. This evidence was objected to upon the ground that it tended to scandalize the prisoner before the jury. The court properly received it. Obviously the exception is unfounded. This evidence went strongly to prove threats, motive, opportunity, and pursuit of the deceased. It was not received to scandalize and unjustly prejudice the prisoner, but to prove important and material facts, that the witness could not give evidence of without speaking of the scandalous quarrel. It was inseparably connected with the evidence of the crime, and the prisoner cannot justly complain that it placed him in a bad light on the trial of tremendous moment to him.
It appears that the trial in this action began on Thursday, the 21st day of February, 1889; that on that day all the evidence was received, and the counsel began the argument to the jury; that on the next succeeding day, Friday, the 22d of the same month, without objection from the prisoner or his counsel, or any person, the argument was concluded, the court gave the jury instructions, and they rendered a verdict of guilty; whereupon the prisoner's counsel moved for a new trial, assigning, in support of his motion, among other grounds, that the day was a legal holiday. He insisted that therefore the verdict of the jury, and all proceedings in this action on that day, were void. The court denied the motion and gave judgment. This is assigned as error.
The statute (Code, § 3784) simply...
To continue reading
Request your trial