State v. Pierce
| Decision Date | 31 October 1884 |
| Citation | 91 N.C. 606 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JOHN WILLIAM PIERCE. |
INDICTMENT for murder tried at January Special Term, 1884, of IREDELL Superior Court, before Graves, J.
Verdict of guilty, judgment, appeal by prisoner.
Attorney-General, for the State .
the prisoner.
The prisoner is charged with the crime of murder committed upon the body of James A. Moore, and upon his trial before the jury was found guilty.
The record shows numerous exceptions to the ruling of the court made during the progress of the trial, one only of which do we find it necessary to consider.
Two witnesses, present at the time of the homicide and who give a minute account of what occurred, (the prisoner's wife and an elder sister, both daughters of the deceased) were examined and testified at great length, whose respective statements of the transaction do not agree in some essential particulars touching the grade of the offence, and the circumstances under which the fatal shot was fired, and the crushing blow upon the head, immediately following, given, and hence it became material to the prisoner to sustain the accuracy of the testimony of the wife in his behalf, and to impair the force of that delivered by the other, on behalf of the state.
The occurrence took place at the house of the deceased on the evening of the 26th day of July, 1883, in the presence of the witnesses and their invalid mother, who was lying upon a bed in the room, and of no other persons.
From the testimony of Mary Moore, the elder unmarried daughter, who details minutely the conduct of the parties and the words which passed between them leading up to the homicide, which it is needless to recapitulate for any present purpose, it appears that the deceased was very drunk, and some cursing between him and the prisoner who had also partaken of whiskey at the house, had been heard, which prompted the witness to ask if they intended to have a fuss, and both answered they did not.
The witness stated that some trouble occurred between the prisoner and his wife, when the prisoner said that he could not make Minnie (the name of his wife) behave, to which the deceased replied, that he could, and taking hold of her flung her over on the bed on which her mother was lying, when witness said, “you will kill mother, be quiet;” he desisted, replying, “I will.”
The prisoner then passed up stairs, when the deceased directed witness to shut the door and window, remarking that the prisoner had gone after his satchel and should not leave that night. This was done. The prisoner came back, and standing on the 4th or 5th step from the bottom while Minnie was sitting on the stairs, the deceased about a step from them, and witness engaged in administering medicine to her mother, she heard the prisoner say, “See here, old man, you can't run over Minnie any longer,” when turning, she saw the prisoner discharge a pistol at deceased, who then had Minnie by the arm.
At the moment of firing, the deceased turned in the direction of his gun, when the prisoner advancing struck him a crushing blow on the head with the pistol, with such violence as in the witness' own words “burst his head open.” When the blow was struck the deceased was facing the prisoner, with his back towards the gun.
The blaze of the pistol was so near the person of the deceased as to set his shirt on fire, and putting his hand over it, he turned towards the prisoner with the exclamation, “Oh, Bill!” when he received the blow and fell on his knees with his head on the stair step. He died immediately.
The version of the matter given by the prisoner's wife was quite different and much more favorable to her husband. To support her testimony and to impair the force of that delivered by her sister, the prisoner's counsel introduced J. A. Anderson, the coroner, and exhibited to him a paper which he swore contained the examination of the witness Mary, committed to writing by himself, and read oves to her and a mark in place of her name put to it. He further swore that he wrote down all that she said and nothing that she did not say.
The prisoner's counsel also introduced the examination of the same witness before the justice who conducted the preliminary hearing, and proved by his oath that this paper contained the testimony of the same witness reduced to writing, not read over to her, nor does he know that she authorized him to sign her name to it.
The counsel, stating that these examinations differed from the present testimony given in, in regard to the homicide and the incidents preceding and attending it, proposed to read them to the jury to contradict and impeach the credit of the witness, but was not allowed to do so, the court holding them incompetent. To this ruling the prisoner excepts.
We have felt some hesitancy in passing upon this exception, since the contents of the excluded papers are not set out and made part of the case.
The general rule undoubtedly is that an exception to the refusal to receive offered evidence will not be sustained unless the record shows what it was, so that the court could decide upon its relevancy and misleading tendency. Overman v. Coble, 13 Ired., 1.
The rule is equally applicable to evidence objected to and received where error is assigned in its admission. State v. Clark, 12 Ired., 151; Sutliff v. Lunsford, 8 Ired., 318; Whitesides v. Twitty, Ib., 431.
So it has been held in Lee v. Patrick, 9 Ired., 135, that when the defendant proposed to show the witness, for the purpose of refreshing his memory of facts, a certain notice, and was not permitted to do so, to which ruling exception was taken, that the judgment could not be reversed for that reason, as the case did not set forth the notice so as to enable the court “to see that its contents were such as were calculated to have the effect proposed.”
But our doubts have been resolved by the fact that the substance of the papers were made known when offered by counsel, and they were excluded as in themselves incompetent, whatever might be their contents. The ruling is more analagous to the case of a witness produced and excluded in consequence of his personal disability to testify, and without reference to the evidence he may give. In such case the error is assigned in the exclusion, and it is not necessary to set out what he was expected to prove. State v. Jim, 3 Jones, 348; Wright v. Stowe, 4 Jones, 516.
The refusal of the court to allow the jury to hear the examinations seems to stand on very much the same basis as the rejection of a...
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