State v. Peterson

• Decision Date: 09 December 1908
• Citation: 63 S.E. 87,149 N.C. 533
• Parties: STATE v. PETERSON.
• Court: North Carolina Supreme Court

63 S.E. 87

149 N.C. 533

STATE v. PETERSON.

Supreme Court of North Carolina

December 9, 1908

Appeal from Superior Court, Yancey County; Ferguson, Judge.

Rube Peterson was convicted of murder in the second degree, and he appeals. Affirmed.

Accused cannot except to the court's ruling allowing the state's challenge of a juror for cause; his right being to reject not to select jurors.

J. Bis Ray, Gardner & Gardner, and Adams & Adams, for appellant.

Clement Asst. Atty. Gen., for the State.

CLARK C.J.

The solicitor entered a nol. pros. as to murder in the first degree. The jury convicted the prisoner of murder in the second degree.

The state challenged for cause a juror who was bound over to that term for an affray. The court stood the juror aside as incompetent. Whether the reason the court gave was correct or not his finding is not reviewable. State v. Green, 95 N.C. 613. The prisoner cannot except to the court excusing a juror. State v. Barber, 113 N.C. 712, 18 S.E. 515. The prisoner's right is to reject, not to select. State v. McDowell, 123 N.C. 764, 31 S.E. 839; State v. Gooch, 94 N.C. 987; State v Hensley, 94 N.C. 1021; State v. Jones, 97 N.C 469, 1 S.E. 680.

The exception that certain witnesses were not properly sworn cannot be considered because the prisoner made no objection at the time nor to the examination. State v. Council, 129 N.C. 517, 39 S.E. 814, and cases cited. Had the prisoner objected in apt time, the judge could and doubtless would have cured the purely technical objection raised. In State v. Gee, 92 N.C. 756, where the witness was not sworn at all, the court held that objection could not be taken after verdict.

The third exception is to the question to a witness: "Did you see any other evidence of shooting other than the wound on the dead man?" The witness replied "Yes," and gave as instances bullet holes, marks of bullets on the house, on bushes, fresh and empty cartridge shells. This was not objectionable as opinion evidence, but was testimony from observation of facts and competent. Britt v. Railroad, 148 N.C. 37, 61 S.E. 601.

The fourth exception was to the same testimony by another witness. A witness for the state testified that he said to prisoner: "'I guess you had him to kill.' Prisoner said, 'Yes.' That was all that was said." The prisoner did not go on the stand, nor introduce any evidence tending to show killing in self-defense. Nor was there such evidence from the state. The above admission was competent against the prisoner to prove the homicide. But his declaration was not evidence in his own favor to show self-defense, especially when ambiguous, as this was. It was proper to exclude evidence attacking the character of the dead man unless there was evidence of self-defense, not merely an admission by prisoner in his own favor. State v. Turpin, 77 N.C. 473, 24 Am. Rep. 455. The defendant introduced no evidence. The only evidence tending to connect the defendant with the difficulty as admitted by counsel in his prayer for instruction was the defendant's affirmative answer to the question, "I guess you had him to kill." This question and answer is not evidence for the prisoner, but against him. The answer "Yes" admitted the homicide, and threw the burden of proving self-defense or manslaughter on the prisoner. "What a party says exculpatory of himself after the offense was committed, and not part of the res gestae, is not evidence for him; otherwise he might make evidence for himself." State v. Stubbs, 108 N.C. 775, 13 S.E. 90; State v. Moore, 104 N.C. 744, 10 S.E. 183; State v. Ward, 103 N.C. 419, 8 S.E. 814; State v. McNair, 93 N.C. 628. So there was no evidence on the part of the defendant tending to mitigate the crime from murder in the second degree. The killing with a deadly weapon being admitted, as it was in this case, the law presumes malice. The burden of proof was upon the prisoner to reduce the crime, or to show self-defense. This he did not try to do.

The prisoner asked the court to instruct the...