State v. Potts

• Citation: 6 S.E. 657,100 N.C. 457
• Parties: STATE v. POTTS.
• Decision Date: 18 May 1888
• Court: North Carolina Supreme Court

6 S.E. 657

100 N.C. 457

STATE v. POTTS.

Supreme Court of North Carolina

May 18, 1888

Appeal from superior court, Beaufort county; GRAVES, Judge.

Indictment of W. A. Potts for murder. There was verdict of guilty, and defendant appeals.

A juror related to the prisoner's wife in the ninth degree is disqualified, on objection by the state for cause.

D. G Fowle, for appellant.

The Attorney General, for the State.

SMITH C.J.

The prisoner, W. A. Potts, and Susan F. Lincke, are jointly charged in the indictment with the crime of murder, committed in June, 1887, upon the body of Paul Lincke, the husband of the last named. Upon their arraignment in the superior court of Beaufort, they pleaded not guilty; and upon trial the prisoner, Potts, was by the jury convicted, and the said Susan F. acquitted, of the charge; the first of whom, after sentence of death pronounced against him, appeals to this court. The case comes before us in a very unusual and imperfect form, none of the facts developed in the evidence being set out, so that we can understand the character of the homicide, and its attending circumstances, and the application to them of the rulings complained of, except in general terms. If there were any doubt left upon our minds as to the grade of the crime, or of its having been committed by a responsible agent, we should not be disposed to proceed, but to remand the cause, or direct the issue of acertiorari, to the end that the facts, as depending on the evidence and the testimony material to their support and pertinent to the errors assigned, be sent up, instead of our having to consider and pass upon propositions of law merely speculative, and whose bearing is imperfectly understood in a matter so serious and involving human life. But, feeling no hesitancy in passing upon the prisoner's exceptions presented in the record before us, we feel at liberty in this case to examine and decide them.

First Exception. When called on to plead to the indictment, the prisoner answered, and proposed it should be so entered "I admit the killing, but was insane at the time of the commission thereof; therefore not guilty," The preliminary portion of the answer was rejected, and the plea entered in the usual form, divested of the irrelevant and impertinent surplusage, and this was entirely proper. The inquiry put to him required a direct and positive response and this is contained in the plea "not guilty," under which every defense to the charge in repelling or mitigating and reducing the offense to a lower grade was admissible. The defendant Susan F. proposed to enter a motion and plea in abatement, on the grounds that one of the grand jurors who found the bill was incompetent; he having a case at issue pending at the time in court. We are relieved of the duty of considering the merits of this motion or plea, (for it is designated by both names,) for the reason that it was after pleading to the indictment, and not in apt time, ( State v. Watson, 86 N.C. 624,) and became wholly unimportant by the verdict of acquittal.

Second Exception. The appellant objected to the order of the drawing of the jurors to constitute the special venire from the jury-box, and its execution, made by the judge for reasons appearing to him sufficient to warrant it under section 1739 of the Code. We see no valid reason assigned against the order, and the only variation of the facts proved and found by the court from the strict statutory provision is that the key, of which there was but one, which unlocks both apartments, was put by the chairman of the county commissioners with their clerk (the register) for safe-keeping, and he swears that it has been kept in his office ever since the last regular drawing of jurors, accessible to no one; and in that the apartments are marked, "Jurors drawn," and "Jurors not drawn," instead of being numbered 1 and 2, respectively. Those of the special venire were drawn from the apartment labeled, "Jurors not drawn." The ruling is correct, and the deviation from a direction merely of the act is not a material matter, as its essential provisions for the security of the accused have been observed. State v. Martin, 82 N.C. 672.

Third Exception. The next exception is to the ruling of the prisoner's challenge of a juror for favor; that he was indifferent and competent; and the same ruling applied to seven other similar challenges for cause. The juror, on examination, stated that he had formed the opinion that the prisoner was guilty on report merely, never having heard the witnesses speak of the matter; and that, while it would require evidence to remove the impression, yet he could, on hearing the evidence from witnesses and the law from the court, disregard the opinion formed, and decide impartially. The court found as a fact that the juror was indifferent, and this is conclusive and unreviewable in this court. Branton v. O'Briant, 93 N.C. 99; State v. Cole, 94 N.C. 958.

Fourth Exception. A juror challenged by the state for cause, that he was related to the prisoner by affinity within the ninth degree, was held to be disqualified to sit in the cause. The juror swore that "he believed that he was nearly related to the prisoner by marriage; that his wife was of kin; he did not know in what degree; it might be fifth cousin. The court found that the juror was related to the prisoner's wife within the ninth degree. The ruling upon the sufficiency of the cause of challenge is sustained in State v. Perry, Busb. 330; State v. Baldwin, 80 N.C. 390; and other authorities. But a further and complete answer to the exceptions referable to all the jurors is that there were 12 peremptory challenges remaining to the prisoner, and he could have stricken from the list a juror obnoxious to him, in the exercise of the right of peremptory challenge, and a satisfactory and impartial jury was obtained; and this right to an impartial jury...