State v. Pitt

• Decision Date: 11 March 1914
• Citation: 80 S.E. 1060,166 N.C. 268
• Parties: STATE v. PITT.
• Court: North Carolina Supreme Court

80 S.E. 1060

166 N.C. 268

STATE v. PITT.

Supreme Court of North Carolina

March 11, 1914

Appeal from Superior Court, Pitt County; Whedbee, Judge.

Willis Pitt was convicted of larceny, and he appeals. Affirmed.

Whether witnesses, respectively 11 and 12 years old, were of sufficient age and capacity to testify is to be determined by the trial court.

Julius Brown, of Greenville, for appellant.

T. W Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gen., for the State.

CLARK C.J.

The defendant was convicted of larceny of the corn of one J. R Bunting standing in the field. The testimony came from eyewitnesses, and was clear and explicit. The first exception is to the refusal of the court to quash the bill of indictment on the ground that said Bunting, who was foreman of the grand jury that passed on the bill, was also the prosecutor, and swore out the warrant before a justice of the peace. The court found as a fact that Bunting, at the time that the grand jury was considering the bill, retired from the grand jury room, and did not discuss the case with the grand jury, nor vote on passing the bill, and that he did nothing in regard to it except that, as foreman of the grand jury, he signed the bill at the direction of the grand jury and carried the indictment into court.

"The general rule has been laid down that interest in a particular prosecution other than a direct pecuniary interest will not disqualify a grand juror, or be ground of objection to an indictment in the finding of which he participates. Accordingly, in the absence of statutory provisions to the contrary, the fact that a person has originated a complaint against the person accused of crime, or is a witness for the prosecution, does not operate as a disqualification. And the same rule has been applied to a person who has evinced a desire and purpose to enforce the law against the particular kind of crime, or has subscribed funds for the purpose of legitimately suppressing a particular violation of law." 20 Cyc. 1301, title, "Grand Jury."

In State v. Sharp, 110 N.C. 604, 14 S.E. 504, where there is a full discussion of objections to the competency of a grand jury, it is held that the fact that a son of the prosecutor was a member of the grand jury did not vitiate the indictment, though he had actively participated in finding the bill.

In State v. McDonald, 73 N.C. 346, it was held that a grand juror was a competent witness on the trial of the defendant. Revisal, § 3242, provides that grand juries shall return all bills of indictment in open court through the acting foreman, except in capital felonies, and it has been often held that an indictment need not necessarily be signed by any one. State v. Mace, 86 N.C. 668.

Exceptions 2 and 3 are to the ruling of the court that two witnesses, respectively 11 and 12 years old, were of sufficient age and capacity to testify. The competency of a witness to testify is determined by the trial court, and is not reviewable on appeal. State v. Finger, 131 N.C. 781, 42 S.E. 820; State v. Perry, 44 N.C. 330; 40 Cyc. 2200.

One of these witnesses, 11 years old, testified that if he swore to a lie they would put him in jail; that he intended to tell the truth, and was going to tell what he knew. The other witness, 12 years old, testified that he had never been in court before; that when he kissed the book it meant that he would tell the truth; that if he should tell a lie they would put him in the lockup. When asked, "What else?" he replied, "I don't know, sir." The finding of the judge that these witnesses were competent to testify was conclusive, and not reviewable. This is so held both as to their moral and religious sensibility and their intelligence. State v. Manuel, 64 N.C. 604; State v. Edwards, 79 N.C. 648.

Shaw v. Moore, 49 N.C. 25, is a very interesting discussion as to the disqualification of a witness on account of his religious belief. The court there held that one who believed in the existence of a Supreme Being was a competent witness, though he did not believe that punishment would be inflicted in the world to come. In that case it would seem that the witnesses were of age. If it were open to us to review the findings of fact of his honor as to the competency of these witnesses, it would seem that they gave very intelligent replies, and a sense of their responsibility and intention to tell the truth, and that punishment would be awarded them should they fail to do so. The fact that one of the witnesses said he "did not know" what punishment would happen to him beyond imprisonment in jail should not disqualify him, in view of the other evidence showing his intelligence and sense of responsibility. However, as already stated, the finding of the judge in such case is conclusive, and not reviewable by us. He sees the witnesses, and can judge better of their intelligence and sense of responsibility than can possibly be transmitted to us on paper.

In Shaw v. Moore, supra, Pearson, J., said that "in the old cases it was held to be common law that...