State v. Pratt
| Decision Date | 28 February 1883 |
| Citation | 88 N.C. 639 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ROBERT PRATT. |
INDICTMENT for murder tried at Fall Term, 1882, of WAYNE Superior Court, before MacRae, J.
Verdict of guilty; judgment; appeal by the prisoner.
Attorney-General, for the State .
Messrs. Allen & Isler, for the prisoner .
The prisoner and Frank Moore were indicted and tried together for the murder of one Leonard O'Neil.
Many witnesses were examined for the prosecution, and amongst them one Bogue, who testified that he saw the prisoner and Moore on the day upon which O'Neil was killed. Witness was sitting in the corner of a fence, and saw them coming from the direction of the town of Fremont, and going towards the skirt of the woods where the body of the deceased was afterwards found. They crossed the fence about fifteen steps from where the witness was sitting; and just before getting to the fence, the prisoner turned around and spoke so that witness could hear him, saying, “I'll be damned if I don't shoot him,” to which Moore replied, “you must shoot him quick, then.” While still in hearing of the witness, Moore mentioned O'Neil's name, and said he was a bad man.
On his cross-examination, the witness said when he first saw them coming towards him, he could hear them talking, but could not distinguish their words, so as to understand what they said, until they got close upon him. No objection to the introduction of this testimony was made at the time, nor was the court asked to withdraw it from the jury. But after verdict, the prisoner's counsel objected to it, as fragmentary, and being only part of a conversation, and its reception is the ground of the first exception.
After the case was given to the jury, they continued in deliberation during one whole night, and, coming into court the next morning, announced their inability to agree, and thereupon the counsel for the prosecution said to them, with the permission of the judge, that he was willing they should render a verdict of manslaughter as against Moore. The jury then retired, and soon afterwards returned with a verdict, finding the prisoner guilty of murder, and Moore, of manslaughter. This assent of the state's counsel to take such a verdict as to Moore, made in the presence of the jury, is the subject of the prisoner's other exception.
Realizing the immense interest which the prisoner has at stake, and the importance of our judgment to him, we have carefully examined the record in the case and considered his exceptions, to see if there can be any reason why the judgment against him should not be permitted to stand, but feel constrained to say that we have found none.
His exception to the testimony of the witness manifestly comes too late. A party will not be permitted to stand by, and without objection, suffer evidence to be heard and acted on by the jury, and then afterwards complain of its admission. The very case cited by prisoner's counsel ( State v. Ballard, 79 N. C. 627), so lays down the proposition, the only exception being, when the evidence admitted is declared to be incompetent by statute. The same distinction is recognized in Efler's case, 85 N. C., 585, where it is said, that the admission of incompetent evidence, unless objected to at the time or be forbidden by some positive law, cannot be the subject of an exception at a later stage of the trial.
But supposing it to be otherwise, and...
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