State v. Moses

• Decision Date: 30 June 1830
• Citation: 13 N.C. 452
• Parties: THE STATE v. MOSES, a Slave.
• Court: North Carolina Supreme Court

13 N.C. 452

THE STATE

v.MOSES, a Slave.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1830

FROM GRAVEN.

1. Under the act of 1796 (Rev., ch. 452), directing the conduct of judges in charges to the petit jury, it is the duty of the judge to recapitulate the testimony in such a manner as will divest it of immaterial circumstances, and so to present all the facts, on each side, that they may have their fullest legitimate operation. An unfair and partial exhibition of the testimony only can be complained of.

2. The weight of testimony is exclusively the province of the jury; but its nature, relevancy and tendency it is the duty of the judge to explain.

3. The duty imposed by the act upon the judge "to state, in a full and correct manner, the facts given in evidence," does not confine him to the words spoken by the witnesses, but authorizes him to state all the circumstances attendant upon the examination, to show how they are contradictory and how reconcilable, and thence to submit a reasonable inference which may be drawn.

4. Thus, where a witness testified that at the distance of ten paces, in a dark night, he saw the prisoner pull the trigger of a gun, and the judge informed the jury that if they believed the witness meant, that by the flash of the gun he saw the prisoner's hand upon the trigger, that

would explain the apparent contradiction—held, that the judge, by such instruction, did not trangress the limits of his duty.

5. Per RUFFIN, Judge.—If a judge, in his charge to the jury, presents only the inferences that can be drawn on one side, arrayed in solido, so as to constitute an imposing argument to the jury, without summing up on the other side, it is an evasion of the statute.

6. By the act of 1S11 (Rev., ch. 809), to regulate proceedings on indictments in the Superior Courts, all defects in indictments are cured, except the omission of an averment of facts and circumstances which constitute the crime charged. Nothing need be stated of which proof is not required on the trial. Therefore, in an indictment for murder it is necessary to aver that a mortal wound was given, but the size and nature of the wound being in an indictment for murder it is necessary to aver that a mortal wound was given, but the size and nature of the wound being matters not material to thedescription of the offense, nor a necessary part of the evidence, its dimensions need not be stated.

7. An indictment concluding "and the jurors," omitting the word so is sufficient.

8. Where a cause is removed for trial it is the exclusive duty of the judge of the Superior Court to determine the fact whether the transcript of the record was certified under the seal of the Court, and this Court will not revise his decision.

The prisoner was indicted in the Superior Court of Jones, as follows:

"The jurors for the State upon their oath present, that Moses, a slave, etc., not having the fear, etc., but being moved and seduced, etc., on, etc., at, etc., with force and arms, at, etc., in and upon one Gabriel, a slave, etc., in the peace, etc., feloniously, wilfully, and of his malice aforethought, did make an assault, and that he, the said Moses, with a certain gun, of the value, etc., then and there charged and loaded with, etc., which gun the said Moses in both his hands, etc., to, against and upon the said Gabriel, then and there feloniously, wilfully, and of his malice aforethought, did shoot and discharge, and the said Moses, with the leaden shot aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder, shot and sent forth as aforesaid, the said Gabriel, in and upon, etc., then and there, feloniously, wilfully, and of his malice aforethought, did strike, penetrate and wound, giving to the said Gabriel, then and there, with, etc., so as aforesaid shot, etc., in and upon, etc., one mortal wound of the breadth of two inches, and of the length of six inches of which said mortal wound the said Gabriel then and there instantly died. And the jurors aforesaid, upon their oath aforesaid, do say that the said Moses, the said Gabriel, in manner and form aforesaid, feloniously, wilfuly, and of his malice aforethought, did kill and murder, against, etc."

After the arraignment and plea, upon the affidavit of the prisoner, the trial was removed to Craven. The following is a copy of the certificate of the clerk of Jones, upon sending a copy of the record to Craven, as certified by the clerk of Craven; the seal of county of Jones being represented in the transcript from Craven bya scrawl.

[L. S.]

"State of North Carolina, Jones County:

"I, R. B., clerk of the Superior Court of Jones county, hereby certify that the foregoing transcript contains true copies of the original bill of

indictment, capias, plea, and all other proceedings lately had in the suit in which the State is plaintiff and negro Moses defendant, as full and entire as they remain of record in said Court at Trenton. 22d October, 1829.

"R. B., Clerk."

On the trial before his Honor, Judge Strange, the principal witness for the prosecution deposed that on a dark night he was standing within ten steps of the prisoner, when he saw him pull the trigger and fire the gun which killed the deceased. The cross-examination of the witness was not very particular, and he did not in any way explain how he was enabled to see in the night. The witness stated that after the deceased was shot, the prisoner and himself, both being fugitive slaves, went into the woods, where the prisoner left him, the witness, and went towards the house of Juba, a slave of Mr. Stanly's, and after being absent some time, returned and said that Juba had charged him, with being the murderer of the deceased. Juba was called for the prisoner, and positively denied having ever seen the prisoner during the whole time he was a fugitive, either at his own house or elsewhere. Witnesses were also called for the prisoner, who gave Juba a good character, and proved especially that he stood high in the confidence of his master. A witness from Robeson county was examined, in support of the principal witness for the prosecutor. He was impeached by another witness from the same county, who swore that before he, the last-mentioned witness, was summoned he heard the first say that he had a grudge against the prisoner, and would hang him if he could, and afterwards, as they were travelling together to Court, theconversation was repeated.

The counsel for the prisoner placed his defence upon the total want of credibility in the witnesses for the prosecution. It was argued —first, that the testimony of the principal witness was not credible from its absurdity, for how could a man in a dark night, at a distance of ten steps, see another pull the trigger of a gun. Secondly. It was urged that he was directly contradicted by Juba; and thirdly, that such feelings were proved to exist in the breast of the witness from Robeson that no confidence whatever could be placed in his testimony.

His Honor, in his charge to the jury, informed them that the credit they would give to the testimony was a matter exclusively with them, and proceeded to suggest such circumstances as, in his opinion, might be considered by them as tending to shake or support the credit of the witness for the State, and leaving it also to them to give such weight to any other circumstances which they might remember and the Judge should omit, as they thought proper.

In speaking of the first objection, the Judge said that a man might see by the flash of a gun, even in the night, and probably the darker the night the more distinctly; and if they believed from the testimony

that was the case in the present instance, and that seeing a man in the attitude of shooting, with his hand upon the trigger, and even by the flash of the gun, was substantially seeing him pull the trigger; and that if this was the fact in the particular case, then the contradiction relied upon in the testimony of the witness did not exist.

Upon the second objection, his Honor instructed the jury that in weighing the credit of the witnesses for the State and for the prisoner, the motives in each to speak truth or falsehood might and ought to be considered; and it was for them to say whether any and what influence the witness Juba's having a good character, and standing high in the estimation of his master, might have in making himdesirous to conceal any intercourse he might have had with a runaway slave.

Upon the third objection, the jury were instructed that one of the conversations in which the witness from Robeson was said to have acknowledged to the witness for the prisoner that he was influenced by malice against him, was after it was known to that witness that the other had been summoned for the express purpose of discrediting him, and while he was going to Court to accomplish that purpose, and the probability of such an acknowledgment under such circumstances should be considered by them in weighing the credit of the discrediting witness.

The jury returned a verdict of guilty, upon which the counsel for the prisoner obtained a rule for a new trial for misdirection, which was discharged. A motion in arrest of judgment was then made, because the word so, in the conclusion of the indictment, was improperly omitted, but the motion was overruled, and judgment of death entered up, from which the prisoner appealed.

RUFFIN, J.—The act of 1796 (Rev., ch. 452), "to direct the conduct of judges in charges to the petit jury," restrains the judge from giving an opinion, whether a fact is fully or sufficiently proved. At the same time, it imposes another duty, which is to state in a full and explicit manner, the facts given in evidence, and declare and explain the law arising thereon.

Perhaps the judge presiding at the trial will find no part of his task more difficult than that of determining how he may fulfill that part of his duty which is active, without violating thatinjunction of the statute which is restrictive.

...