State v. Norris

• Decision Date: 31 October 1796
• Citation: 2 N.C. 429
• Parties: STATE v. NORRIS.
• Court: North Carolina Supreme Court

2 N.C. 429

STATE

v.NORRIS.

SUPERIOR COURTS OF NORTH CAROLINA

OCTOBER TERM, 1796

A motion to postpone a trial for murder on account of the great public excitement against the prisoner, was refused. WILLIAMS and HAYWOOD, JJ., differed as to the questions whether a juror could be asked on oath whether he had expressed an opinion unfavorably to the prisoner. The State may discredit its own witness by proving that the witness, on former occasions, had given a different account of the transaction from that which he relates in court. A person who was violently abused and beaten, made his escape, ran to his own house, 80 yards off, got a knife, ran back, and upon meeting, with the deceased, stabbed him. It seems that he is only guilty of manslaughter. If, upon the second meeting, the prisoner had disguised the fact of having a weapon, for the purpose of inducing the deceased to come within his reach, the killing would have been murder.

INDICTMENT for the murder of Nathaniel Daves, and not guilty pleaded.

The prisoner was brought to the bar to take his trial. Mr. Hay read a paragraph from a paper printed in this place, and circulated on Monday last, stating the homicide committed by the prisoner in terms of aggravation, and moved on that account for a postponement of his trial, apprehending that the public mind was too much irritated at present for the prisoner to have a fair trial.

WILLIAMS, J. The people in this country do not take for truth everything that is published in a newspaper. The jury well know they are to be governed only by the evidence and the law. I trust no one will be so much prejudiced against the prisoner as to be led to an unjust condemnation. It will be the duty and the business of the Court to see that he has every advantage the law allows him. It is not to be apprehended that a jury of this country will do him wrong; their humanity is proverbial.

HAYWOOD, J. I disapprove highly of the publication. The cause, however, is in course of trial, and must come on. The clerk began to call over the jurors, after informing the prisoner these were the men who were to pass upon his trial, and that he must challenge them if he thought proper, as they came to the book to be sworn.

Mr. Hay said the killing of Daves by the prisoner had been a subject of very general conversation; that the fact had been related in a newspaper under aggravating circumstances, and though that publication might not have been made with a view of preoccupying the mind of any one who was to take a part in the trial, yet in reality it may have had the effect of prejudicing the public mind in general against the prisoner; that he had but too much reason to apprehend it had produced such effects. He therefore moved when the prisoner objected to a juror propter effectum, or for favor, as it is called, that the juror might be examined upon oath whether he had expressed an opinion unfavorable to the prisoner, as otherwise it would be difficult for him to produce any satisfactory proof of the fact, having been confined and visited only by one friend, and not knowing until the moment the juror is offered whether or not that person would be upon the panel. Great part of the jurors being talesmen, summoned this morning since the sitting of the court, had he ever heard of any man having expressed an unfavorable opinion, not knowing he would be summoned as a talesman, it is not to be expected the prisoner could be prepared to prove his exception, however true it might be, unless it could be supposed he had prepared himself to support his exception against every man who had given such opinion, and that would be unreasonable.

Mr. Jones opposed the motion, saying there was no precedent for such a procedure, and he hoped the Court would not now make one for the first time in favor of this prisoner, who should be tried as all other prisoners have been.

HAYWOOD, J. I do not at present recollect ever to have seen such a practice, and I am induced to think there is no precedent of this kind.

WILLIAMS, J. There is none.

Mr. Taylor then cited 3 Bl. Com., 363. A person about to be sworn as a juror may be challenged for any of the causes there stated; or even where the challenger hath no principal cause of challenge, but only some cause of suspicion, the validity of which must be left to triers. He also cited 3 Bl. Com., 364, where it is laid down from Co. Litt., 158 b,

that a juror may himself be examined on oath of voire dire with regard to such causes of challenge as are not to his dishonor or discredit. He also cited 4 Bl. Com., 352, where it is said theprisoner may have the same challenges for cause in a criminal as the plaintiff or defendant may in a civil case, and where a challenge propter effectum is mentioned as one of them. He argued that the expressing an opinion by the person offered as a juror, if not a principal cause of challenge, as he thought it was, at least is such a cause as might reasonably induce a suspicion of his not being indifferent and impartial towards the prisoner; and if a prisoner in a criminal case had a right to except to a juror, suspecting him to be unfavorable, there must be some mode of trying and discovering the truth of the exception, and there was no reason in a criminal case for resorting to a different mode of trial from that used in a civil one; and if on a civil case, for the purpose of reaching the disposition of the juror towards the party, the law would suffer a juror to be interrogated on his oath with respect to the truth of the cause alleged, to show him not impartial, it is equally necessary that a prisoner, where life is in danger, and for whom the law professes so much tenderness, should be also entitled to have his exception tried in the same way, and to the same means of investigating it.

HAYWOOD, J. Upon reflection, I am of opinion the motion isproper and the person offered may legally be interrogated on oath, as to any unfavorable opinion he has expressed against the prisoner. I can see no reason why the exception is not allowable as well in a criminal as in a civil case, nor why the juror should be sworn in a civil case and not in a criminal one. It is rather more necessary in the latter, as it is of more importance to the prisoner concerned to have a good opinion of his jury. If a prisoner is at all entitled to the privilege contended for, it is as necessary to allow it in the case before us as in any other. There is reason to suspect that the publication just spoken of may have had some influence upon the public mind, unfavorable to the prisoner. The homicide with which he is charged has taken place in this town but a few days past. It is to be feared some ferments are caused by it, rendering it proper for the Court to be circumspect and careful that the prisoner be not prejudiced by the violence of the current opinion. We should act as counsel for the prisoner so far as to see that he has a fair trial, and that he is not denied the benefits the law has provided for his defense against injustice.

WILLIAMS, J. I cannot think the prisoner is entitled to interrogate a juror on oath as asked for. This man should be tried as all others

have been. Why should we extend privileges to him that were not granted to the man tried yesterday for murder? That man's life was as dear to the public yesterday as this man's is today, and we allowed no such privilege to him. I have never known such a thing even asked for before in any criminal case. The office of a judge is indeed a very arduous one; I feel sensibly how disagreeable it is to sit upon a trial when the life of a fellow-citizen is in jeopardy; but when we once undertake it, we should discharge it faithfully, regardless of those sympathizing feelings for the prisoner which are so apt to be experienced on such occasions. We are not to be influenced in any respect by them. It is not a true position that we are to be the friends of the prisoner. We are to see that he has a fair trial, and this is all that is required of us.

HAYWOOD, J. I am intrusted in some measure by my country with this man's life. He may be a bad man and deserve death; but I will not prejudice him, neither will I for any earthly cause be prevailed upon to deny him any privilege he is entitled to. I think upon consideration he is entitled to that which his counsel ask for him; and were the whole world here present to demand his execution, I would not refuse him an advantage that should be conceded to him. Whilst I sit here, the public cry shall never seduce or impel me into theadoption of a measure my judgment disapproves.

Mr. Hay: In order to get over the embarrassment this motion is likely to produce, and the warmth it has given occasion to, I propose that where a juror is challenged propter affectum, or for having expressed his opinion, his name shall be set down and noted as one challenged for cause, and that the clerk then proceed with the panel; and if the panel shall be gone through and the jury not completed, that then we consider of the jurors whose names are noted, and how the exception shall be tried. Perhaps we may get a jury before the panel is gone through, and then it will not be necessary to consider further of the exceptions.

WILLIAMS, J. That proposal is a proper one. I think it should be adopted.

HAYWOOD, J., assented.

The jurors in the panel were then offered to the prisoner, and a jury was completed; and they were sworn and charged with the prisoner. The evidence on the trial was as follows: On Saturday night Norris

and Young came to the house of Mrs. Ramsay, where were Daves, Dudley, Ramsay, Campbell, and others. Young remained in the piazza, Norris came in and sat talking with Ramsay for some time. Campbell went into the piazza to Young, who was intoxicated. He talked of Daves, saying he understood Daves had said he could whip Norris, and desired Campbell to tell him to come out. Shortly after this Norris came out. They moved towards the door, Campbell went in,...