State v. Morris

• Decision Date: 31 January 1881
• Citation: 84 N.C. 756
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN MORRIS.

84 N.C. 756

STATE

v.JOHN MORRIS.

Supreme Court of North Carolina.

January Term, 1881.

INDICTMENT for murder, tried at Fall Term, 1880, of CLEAVELAND Superior Court, before Seymour, J.

The opinion contains the facts. The jury rendered a verdict of guilty, judgment, appeal by prisoner.

Attorney General, for the State .

Messrs. Bynum & Grier, for the prisoner .

RUFFIN, J.

The prisoner was indicted at fall term, 1880, of Lincoln superior court, for the murder of one Joe Roark, and having procured his cause to be removed, was tried at fall term of Cleaveland court.

The killing occurred on the 10th of August last, about 9 o'clock at night, in a street of the town of Lincolnton.

The state introduced the sister of the deceased, who testified that her brother was shot in front of her house; that hearing him cry out she went to her door, and there saw some one over her brother beating him on the head; whereupon she made an outcry and the person fled, going across the “church lot,” and towards the railroad.

The deceased made a declaration before his death, to the effect that two men met and passed him on the street, when one turned and shot him, and then ran across the “church lot.” The state then offered evidence to show that there were the tracks of some one leading from near the spot where the shooting occurred, and across the church lot, and thence down the railroad for some distance and up a street when the impressions ceased, but their direction was towards a quarter of the town where a number of colored people, including the prisoner, lived.

The state then offered to prove by a number of persons that they had measured these tracks and applied the measurement to the boots of the prisoner, to which the prisoner objected, on the ground that the measurement and comparison had been made in his absence, and that he was entitled to notice, and to have been present or represented at such comparison. The court overruled the objection, and the witness deposed to taking the measurement of the tracks, and to its correspondence with the prisoner's boot in size, shape and other particulars.

The theory of the state was that the prisoner had a motive to kill the deceased arising out of a desire to rid himself of the evidence he apprehended the deceased would give against him in a prosecution for larceny then pending against him; and in support of this, the state offered in evidence the record of an indictment for larceny, found at spring term, 1880, of Lincoln superior court, against the prisoner and five others, and upon which the deceased was the only witness endorsed as having been before the grand jury; and to show by the clerk of that court, who produced the record, and by the record itself, that the deceased had been originally implicated in the same charge of larceny, but having turned state's witness against the prisoner and others indicted with him, he was omitted from the indictment. To all of which evidence the prisoner objected upon the ground that it was irrelevant, but the court overruled the objection and admitted the evidence.

The trial lasted through two days, and some of the state's witnesses were examined the first day and some the second; after the state had rested its case on the second day, the prisoner called to the stand a witness that had been sworn but not examined by the state, and during his examination it was discovered that the oath which had been administered to him and all the witnesses that had been previously examined, differed from the oath prescribed by the statute, and thereupon the prisoner objected to his further examination and insisted that all the testimony previously taken was incompetent, because it had not been given under the sanction of the proper oath. The solicitor then asked and was allowed to recall all the witnesses and after having the prescribed oath administered to examine them anew, to which the prisoner excepted.

When the trial was about to begin on the first day, the judge, at the instance of the counsel for the accused, directed the state's witnesses to be separated, and the same was done during their first examination; but when they were recalled and examined the second time (after the discovery about the oath) the prisoner made no such request, and the court no such order, so that some of those witnesses were in the court room during the examination of the others; to which the prisoner excepted.

One of the state's witnesses, after his examination on the first day, went to his home in the country, so that he was not present when the other witnesses were recalled and examined on the second day, but arrived while the prisoner was examining his witnesses, and after he closed his case the solicitor was allowed by the court to examine him, to which the prisoner excepted.

After the verdict the prisoner moved for a new trial upon the ground that the officer in whose charge the jury were placed was in the room with them during the whole of one night, when the jury were considering of their verdict; and that during the time he made frequent communications to the solicitor and others of the progress of their deliberations, and how, and upon what points they differed.

The court heard the affidavits of the prisoner and other persons, and from them, made the following findings:

1. That the officer, under a mistaken view of his duty, did communicate to the counsel for the state and one of the attorneys for the prisoner, his belief as to how the jury were divided.

2. That he slept in the room with the jury, but was not present with them, at any time, when they were deliberating upon, or discussing the case.

3. That no improper communications were made to or by the jury. And thereupon the court overruled the prisoner's motion to which he excepted.

We know of no principle of law, or rule of evidence, under which the testimony offered by the state in regard to the examination of the tracks and boots of the prisoner, should have been excluded, because made in the absence of the prisoner, or without notice to him, to be present. The counsel who argued the case here for the prisoner, cited us to no authority in support of the position, and it is difficult to conceive that any such could be found; as to admit it, is to put an end to all inquiry into the commission of offences depending upon the introduction of...