State v. Register
| Decision Date | 18 December 1903 |
| Citation | 46 S.E. 21,133 N.C. 746 |
| Parties | STATE v. REGISTER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Columbus County; Moore, Judge.
J. B Register and another were convicted of murder in the first degree, and they appeal. Affirmed.
John D Bellamy, C. M. Bernard, and Donald McRacken, for appellants.
Lewis & Schulken and the Attorney General, for the State.
The prisoner Jabel B. Register is indicted and convicted of murder in the first degree, and H. B. Register, his father is indicted in the same bill, and convicted of being an accessory before the fact. The evidence of the state, if believed, showed that on Saturday afternoon, March 28, 1903, Jabel met Cross Edmundson and told him his father (H. B. Register) wished to see him; that together they went up to the house of H. B. Register, who told them that Jim Staley, a colored man staying with Jesse Soles, had between $1,000 and $2,000, and he wanted them to "hold up Jim Staley and get his money, and kill him, if necessary"; that H. B. Register furnished them with two guns he had ready, and some canned goods in a tow sack, and under H. B. Register's direction they left, about 10:30 at night, to go down to commit the robbery; that the place where Jim Staley resided being some miles off, after traveling part of the way they lay down in the woods and slept till next morning, when they resumed their journey, and then spent the day near a stillhouse till about dusk, when they started to Jesse Soles' house, where Jabel Register went up to the window and fired both barrels through the window into the house, killing Jesse Soles and Jim Staley; he then entered the room, remained a while, came out, and left; the house was soon afterwards in a blaze, and Cross Edmundson, when three or four miles away on their return, asked Jabel what it meant, and after some hesitation he replied that "he reckoned his papa and Jesse Soles were having a settlement." The only direct evidence is that of Cross Edmundson, the accomplice, which is full, minute, and dramatic in its details. There were witnesses, and proof of sundry circumstances, which, if believed, strongly corroborated Edmundson at sundry points in his narrative. The prisoners were tried at a special term, the commission reciting in the ordinary form that there was such an accumulation of criminal business as rendered a special term necessary. Code, § 914. The prisoners moved for a continuance on the ground that, this bill being found at that special term, it was not part of the accumulation of criminal business specified in the commission as a reason for ordering such special term, and hence the judge had no power to try them; and the prisoners excepted.
The first exception is to the refusal of this motion, and is without merit. The power of the Governor to order special terms is not restricted to instances where there is accumulation of business, nor when such fact is recited as a reason in the commission is the power of the judge restricted to the trial of indictments found before that term. Code, § 913; State v. Lewis, 107 N.C. 967, 12 S.E. 457, 13 S.E. 247, 11 L. R. A. 105; State v. Turner, 119 N.C. 841, 25 S.E. 810.
The second exception is for the refusal of the motion to quash the venire on these facts: The judge ordered a special venire of 200, and the names were drawn from the box in open court as provided by section 1739 of the Code, which provides that "the names so drawn (being freeholders) shall constitute a special venire." The court undertook to ascertain whether those whose names were so drawn were freeholders or not, "and ascertained from the tax list of the county, the officers of the court, and other sources, that 37 (of 237 names so drawn) were not freeholders," and the names of these 37 were not placed on the venire, leaving 200. The case on appeal further says that the officers and others from whom such information was had were not sworn, but that it appeared that the names of none of the 37 were on the tax list of 1902 as owners of realty; that there was no suggestion or evidence that any one of them was a freeholder; that there was no objection or exception to this mode of proceeding, nor any request that the officers or other persons giving information be sworn; and the judge found at the time, as a fact, that none of the 37 was a freeholder, and that the 200 were freeholders. This finding of fact is binding on us, and is fatal to the exception. Besides, the prisoners made no exception at the time, nor can they except to the rejection of a juror, since their right is "to reject, not to select," and, moreover, they are in no position to complain, for they did not exhaust their peremptory challenges. The practice of drawing the venire from the box in open court was specially commended in State v. Brogden, 111 N.C. 656, 16 S.E. 170. Other cases are State v. Moore, 120 N.C. 570, 26 S.E. 697; State v. Dixon, 131 N.C. 808, 42 S.E. 944; State v. Utley, 132 N. C., at page 1032, 43 S.E. 820. In State v. Cody, 119 N.C. 908, 26 S.E. 252, 56 Am. St. Rep. 692, the court said, "It is not error in the trial judge, when ordering a special venire, to direct the sheriff to summon only freeholders," and in the present case the judge ascertained that fact himself, instead of leaving it to the sheriff to determine. There was, and could be, no prejudice to the prisoners in what was done, but it will always be better practice to swear the officers and others giving information on such occasions.
The able counsel of the prisoners who entered these two exceptions doubtless did so out of abundant caution, not relying upon them himself, but being uncertain "how they might strike the court."
The third exception is to the indifference of two jurors who the court, as the "trier of the facts," found as a fact were indifferent. Such finding is not reviewable. State v. De Graff, 113 N.C. 688, 18 S.E. 507; State v. Potts, 100 N.C. 457, 6 S.E. 657; State v. Greene, 95 N.C. 611; State v. Collins, 70 N.C. 241, 16 Am. Rep. 771.
The fourth, fifth, and sixth exceptions are omitted from the brief of the prisoner's counsel, and therefore we take it they are abandoned (Rules 32 and 34, 131 N.C. 831, 43 S.E. v), but at any rate they are without merit. The fourth exception was to the trial of H. B. Register by the special venire, on the ground that a special venire can be drawn only in capital cases, but the Code (section 977) provides that the principal felon and an accessory before the fact may be indicted and tried together. Further, the jury had already been passed upon, and each juror accepted, before the objection was made, and without exhausting the peremptory challenges. It is a conclusive presumption in such case that the jury is unobjectionable. State v. Pritchett, 106 N.C. 667, 11 S.E. 357; State v. Potts, supra; State v. Freeman, 100 N.C. 429, 5 S.E. 921; State v. Jones, 97 N.C. 469, 1 S.E. 680. The fifth and sixth exceptions were to the proper rejection of incompetent hearsay evidence.
The seventh exception was to the evidence of Cross Edmundson, in his statement before the justice of the peace, that on the aforesaid March 28, 1903, H. B....
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