State v. O'Neal

• Citation: 7 Ired. 251,29 N.C. 251
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1847
• Parties: STATE v. O'NEAL.

7 Ired. 251

29 N.C. 251

STATE

v.O'NEAL.

Supreme Court of North Carolina.

June Term, 1847.

There is no obligation on a Judge to interrupt counsel in stating their conclusions, either of law or fact. It is the right and the duty of the presiding Judge, if counsel state facts as proved, upon which no evidence has been given, to correct the mistake, and he may do it at the moment, or wait till he charges the jury--perhaps the most appropriate time.

In criminal charges, the prisoner's character cannot be put in issue by the State, unless he open the door by giving testimony to it. But it is not a conclusion of law, that from his silence, the jury are to believe he is a man of bad character.

An omission on the part of a Judge to instruct the jury on a particular point, if no instruction be asked from him on that point, is not error.

In an indictment for altering the mark of a cattle-beast, it is not necessary to set forth the original mark nor in what manner the alteration was made.

The cases of State v. Collins, 3 Dev. 117, and State v. Davis, 2 Ired. 153, cited and approved.

Appeal from the Superior Court of Law of Edgecomb County, at the Spring Term, 1847, his Honor Judge BAILEY presiding.

The prisoner is indicted for altering the mark of a cow, belonging to Martha Benson. The words in the indictment, describing the offence, are “unlawfully, knowingly and wilfully did alter the mark of a certain cow, the property of Martha Benson,” charging the intent. No evidence was offered by the defendant of his good character. The Attorney General, in the course of his argument to the jury, stated, that the State was not at liberty to give evidence of the prisoner's character, but that the prisoner had a right to do so; that he had not availed himself of the privilege; and, from the absence of such testimony, was proceeding to argue, that he was a man of bad character, when he was interrupted by the prisoner's counsel, who insisted that, as no evidence had been offered as to character, the Attorney General had no right to comment upon it. The Court over-ruled the objection and permitted the Attorney General to proceed with his argument. The prisoner was convicted and a rule for a new trial obtained, because the Court permitted the Attorney General to make to the jury the remarks he did, on the character of the prisoner. The rule was discharged. The defendant then moved in arrest of judgment, because of the insufficiency of the indictment, in not charging the particular mode, in which the mark was altered. The motion was over-ruled and judgment pronounced, from which the prisoner appealed.

Attorney General, for the State .

B. Moore and Mordecai, for the defendant .

NASH, J.

It is the privilege of parties to be heard at the Bar through their counsel, and a wide latitude is given to the latter in making their argument to the jury. Nor do we know of any obligation on a Judge to interrupt counsel in stating their conclusions either of law or fact. It is the right and the duty of the presiding Judge, if counsel state facts as proved, upon which no evidence has been given, to correct the mistake, and he may do it at the moment or wait until he charges the jury, perhaps the most appropriate time. In criminal charges the prisoner's character cannot be put in issue by the State, unless he open the door by giving testimony of it--nor is it a conclusion of law, that, from his silence, the jury are to conclude he is a man of bad character. Our attention has been drawn by the Attorney General to the case of Vane, 12 Wend. 78, 82. It certainly sustains him in his position, but we do not feel disposed to follow it. We much prefer the rule established by this Court in the case, the State against Collins, 3 Dev. 117. From the charge of the presiding Judge we learn, that no evidence was offered by the defendant to show that he was a man of good character. “The Counsel argued to the jury, that if they would not be justified by the testimony to convict the most respectable of their acquaintance, they would not in law be justified in convicting the prisoner. The jury was instructed that was not the true rule. That when a defendant introduced no such testimony, the true rule was, that if the evidence would not justify them in returning a verdict against a person of whom they had never heard before and of whom they knew nothing, but what was disclosed by the testimony, then it would not justify a verdict against the defendant.” This opinion was adopted by the Supreme Court. The rule is then established that no deduction results in law unfavorable or...