State v. Oxendine

• Decision Date: 22 December 1890
• Citation: 107 N.C. 783,12 S.E. 573
• Court: North Carolina Supreme Court
• Parties: State . v. Oxendine.

12 S.E. 573

107 N.C. 783

State .

v.Oxendine.

Supreme Court of North Carolina.

Dec. 22, 1890.

Criminal Law—Joint Indictment—Separate Trial.

1, On a joint indictment for felony, a motion for a separate trial is adressed to the discretion of the court, and its action will not be reviewed except in case of gross abuse.

2. When, under a joint indictment, testimony is received of a confession by one of the defendants in the absence of the other, or when one of the accused is granted a separate trial, and is called as a witness by one on trial, and is contradicted by statements made by him prejudicial to the defense, it is the duty of the court to state such testimony carefully and specifically to the jury, explaining to them the exclusive purpose for which it was received, and admonishing them against its use for any other purpose, and it is not sufficient to charge in general terms that the confessions of one defendant in the absence of the other are not evidence against the latter.

Appeal from criminal court, Robeson county; Gilmer, Judge.

W. F. French, for appellant.

The Attorney General, for the State.

Shepherd, J. The prisoner was jointly indicted with Stephen Jacobs and Make Mitchell for the murder of one Mrs. Arps, and upon the arraignment he and the said Mitchell moved for a severance. The motion was granted as to Mitchell, but refused as to the prisoner, who, after requesting that he might be tried with Mitchell, was put upon his trial with Jacobs. It is well settled that the question of severance is addressed to the wise discretion of the trial judge, (State v. Gooch, 94 N. C. 1006; State v. Smith, 2 Ired. 402; 1 Whart. Crim. Law, 433,) and that the exercise of this discretion, except in cases of gross abuse, cannot be reviewed by the appellate court. The duty of passing upon such motions is one of very grave responsibility, and its discharge it often very perplexing to the judge; the difficulty, in many instances, being enhanced because it cannot, before the trial is entered upon, be satisfactorily ascertained whether the defenses are so antagonistic that the parties cannot be fairly tried together. When, however, a severance is declined and the trial develops conflicting defenses, involving the admission of testimony against one party which is inadmissible against the other, it becomes the duty of the judge, by clear and distinct instructions in bis charge, to guard against the prejudicial effect of such testimony by stating it carefully and specifically to the jury, explaining to them the peculiar and exclusive applicability to the party against whom it is competent, and earnestly admonishing them against its influence in determining the guilt of the other. State v. Powell, 106 N. C. 635, 11 S. E. Rep. 191. It is believed by some that even the most painstaking efforts of the judge will often fail to efface from the minds of the jury the impressions made by hearsay or other incompetent testimony, and the task is rendered all the more discouraging by the repetition of such testimony in the arguments of counsel, directed, as they are, in the interests of their respective clients. It is said that it requires the highest exercise of the intellectual faculties to free the mind from erroneous opinions founded upon improper testimony, and that so great is the infirmity of man that often the most severely trained intellects are incapable of accomplishing so gratifying a result. It is but natural, therefore, that the same law which, for purposes of convenience or other policy, makes it possible in some cases that such exceptional testimony may be heard, should also devolve upon its judges the imperative duty of exerting themselves to remove its prejudicial effects. This is demanded by every principle of humanity, as well as of justice. Was this duty performed in the present case? There was testimony tending to show that the deceased was killed while in her house by shots fired by some person or persons from the outside, and that Jacobs, Mitchell, and the prisoner were the guilty parties. In the course of the trial, the state introduced one Hinson, who was permitted, over the objection...