Appeal
from Superior Court, Richmond County; Oglesby, Judge.
Simon
Portee, Sam Burno, and Lawyer Tucker were tried under
indictment charging assault with intent to kill, and, from
judgment of conviction for assault with a deadly weapon
Simon Portee appeals.
No
error.
Wife's
declarations in husband's presence and in presence of
third persons naturally calling for some action or reply if
not true, husband remaining silent, are admissible against
husband.
The
above-named defendants were tried on a bill of indictment
charging an assault with intent to kill one Bostick Williams.
All three of defendants were convicted of assault with a
deadly weapon, and the defendant Simon Portee appealed from
such conviction and the judgment of the court in which each
of the defendants was sentenced to serve eighteen months on
the county roads of Richmond county. The alleged assault was
committed on July 21, 1929.
Lawyer
Tucker did not appeal. Sam Burno and Simon Portee appealed.
See companion case, 156 S.E. 781, where no error was found in
appeal of Sam Burno. Some of the assignments of error on this
record are similar to those in the Burno Case, and, being
there considered, reference is made to that case.
The
prosecuting witness, Bostick Williams, testified, in part
"I know the defendants, having known Burno about eight
years; Simon Portee eight or ten years, and Lawyer Tucker
four or five years. Burno was living in Hamlet but was
running a drug store in Southern Pines. Portee and Tucker
lived near me in the North Yard; no one lived nearer than 400
or 500 yards to me. *** On Friday, while I was at home about
midnight the defendants came to my house; they broke the door
open and rushed right in on me. They all had sticks and they
began to beat me, and I said, 'What is the matter, what
have I done?' and they did not answer, but each one hit
me a lick apiece. I was so unconscious I could hear them say
something but could not understand it. They hit me as many as
three times and I do not know how many more. These are the
scars
on my head from the licks. I did not come to myself until
sometime Monday, and when I did, I was lying across my bed
with my clothes on. *** I was laid up between seven and eight
weeks as near as I can remember."
The
defendant, Simon Portee, denied his guilt and testified, in
part: "I live in Hamlet, N.C. Been there between 25 and
30 years. I live in the North Yard. I was home on Saturday
night, July 21st, I got home at 11:30. When I went home at
11:30 the 11:30 whistle blew when I got out of the car and
started in the house. They have a whistle in Hamlet that
blows at 11:30, the round house whistle. I am employed by the
Seaboard. It was around 12 when I retired. My wife and
children were at home that night. I don't know what time
my wife retired. She got up when the baby got sick and she
said she stayed up until along about 1:00 or 1:30. *** I did
not leave my house that night from the time I retired until I
got up next morning. I heard Bostick Williams say on the
stand yesterday that I hit him with some sort of stick. I
never thought of such a thing, much less hit him. I would not
have hit him for anything. Old Bostick knows I am a friend to
him and have been since he came in town. ***
(Cross-examination.) The officers come on Sunday or Monday
and asked me where I was on that Saturday night, and I told
them I got home at 11:30. My wife did not accuse me in the
presence of the officers of having gone to Rockingham with a
woman. She did not tell them in my presence that I did not
get home until 1:30. I did not tell the officers I took a
woman to Rockingham that night."
Officer
B. L. Finch, when recalled, testified, in part:
"Q.
When you went to investigate the whereabouts of Simon
Portee, on the night this man was beat up, where did you
find him? A. I found him at home the first time.
"Did
you have a talk with him at home in the presence of his
wife? A. I first talked to Simon and he told me he got home
at 11 or something like that. His wife come up and wanted
to know what was the trouble and I asked her what time
Simon got home, in his presence. (Simon objects; offered
for the purpose of contradicting Simon.)
"By
Mr. Sedberry: Objection, as anything that his wife might
have said is privileged and is not competent evidence
against him.
"By
the Solicitor: I am offering it to contradict him. I am
asking you first, what did Simon tell you, and all that he
told you? I ask you for the conversation you had with Simon
Portee and his wife when they were both together as to his
whereabouts on the night this man was beat up.
"By
Mr. Sedberry: Objection to anything his wife said except in
so far as it impeaches her. (Objection overruled;
exception.)
"By
the Court: Was he present? A. Yes. (Objection; overruled;
exception.) A. Simon said he got in about 11 o'clock
and his wife come out to the car where Chief Miller and
myself was, and I asked her--and he was present, standing
there--and she said it was late in the morning after
midnight and Simon said he did carry a woman to Rockingham
and was a little late getting back. And she told him if it
was not for that old automobile he would not be in trouble;
that that was keeping him out late at night. (Motion to
strike out that part of the answer wherein witness has
stated things that contradicted Victoria Portee unless it
is limited to the impeachment of the witness. Objection
overruled, and the defendant Portee excepts.)"
The
defendant Portee offers in evidence the statement made by the
prosecuting witness, Bostick Williams, which is read to the
jury, and which is as follows: ""I realize from
what the doctor says that I may die. Around two o'clock,
Sunday A. M., July 21st, 1929, Sam Burno, Simon Portee and
James Tucker come to my house and broke the door open and Sam
Burno hit me first, James Tucker hit me with a board, Sam
Burno said that he would bring me down."
The
defendant duly assigned errors to the exceptions above set
forth and appealed to the Supreme Court.
J. C.
Sedberry, of Rockingham, for appellant.
D. G.
Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for
the State.
CLARKSON
J.
Officer
B. L. Finch, a witness for the state, had testified
previously. The state had rested, then the defendant Simon
Portee testified in his own behalf, and among other witnesses
testifying for him was his wife, Victoria Portee. Thereupon
Finch was recalled. He proceeded to testify as to a
conversation he had with Simon as to when he had gone home
the night of the assault. That evidence was as follows:
"Simon said he got in about 11 o'clock and his wife
came out to the car where Chief Miller and myself was and I
asked her --he was present, standing there--and she said It
was late in the morning--after midnight and Simon said he did
carry a woman to Rockingham and was a little late getting
back. And she told him if it was not for that old automobile,
he would not be in trouble-- that that was keeping him out
late at night."
The
question arises, Was the silence of Simon Portee, under the
facts and circumstances above set forth, some evidence to go
to the jury to contradict him. We think the evidence
competent, the probative force was for the jury.
In
Underhill's Crim. Ev. (3d Ed.) part § 208, it is said:
"The silence of the accused as regards statements in his
hearing which
implicate him directly or indirectly may be proved with the
statements, and from his acquiescence the jury may infer that
the statements are true and that they prove his guilt.
Silence is assent as well as consent, and may, where a direct
and specific accusation of crime is made, be regarded under
some circumstances as a quasi-confession. An innocent person
will at once naturally and emphatically repel any accusation
of crime, as a matter of self-preservation and self-defense,
and as a precaution against prejudicing himself. *** For
silence to be equivalent to a confession, it must be shown
that the accused heard and understood the specific charge
against him, and that he heard it under circumstances not
only permitting him, but calling on him for a denial, taking
into consideration all the circumstances and the persons who
were present." Part § 209: "The silence of the
accused may spring from such a variety of motives, some of
which may be consistent with innocence, that silence alone is
very slight evidence of guilt; and, aside from the inference
which may arise from the attendant circumstances, should be
received with caution as proof of guilt."
In
Guy v. Manuel, 89 N.C. at page 86, Ashe, J.,
speaking for the court, said: "To make the statements of
others evidence against one on the ground of his implied
admission of their truth by silent acquiescence, they must be
made on an occasion when a reply from him might be properly
expected. Taylor on Ev.,§ 738; State v. Suggs , at this term. But where the occasion is such that
a person is not called upon or expected to speak, no
statements made in his presence can be used against him on
the ground of his presumed assent from his silence."
State v. Suggs, 89 N.C. at page 530: "Where a
statement is made, either to a man or within his hearing,
that he was concerned in the commission of a crime, to which
he makes no reply, the natural inference is that the
imputation is well founded, or he would have repelled it.
Guy v. Manuel, 89 N.C. 83; Whar. Ev., § 1136, and
cases there cited."
In
State v. Martin, 182 N.C. at page 850, 851, 109 S.E
74, 76, is the following: "The testimony of this witness
as to statements made by the woman in the presence of the
defendant was properly admitted. True, the witness said that
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