State v. Rowe

• Decision Date: 23 December 1887
• Parties: STATE v. ROWE.
• Court: North Carolina Supreme Court

4 S.E. 506

98 N.C. 629

STATE v. ROWE.

Supreme Court of North Carolina

December 23, 1887

Appeal from superior court, Durham county; PHILIPS, Judge.

Indictment for burglary. The defendant, one Rowe, was indicted for burglariously entering the house of one Samuel A. Thaxton and was convicted. The defendant appealed.

If a witness is impeached by proof of his having previously made statements inconsistent with his testimony, he may be supported by proving other statements made by him in accordance with it.

J. S Manning and W. A. Guthrie, for defendant.

The Attorney General and Strudwick & Boone, for the State.

DAVIS J.

Indictment for burglary, tried before PHILIPS, J., at the spring term 1887, of Durham superior court. The principal witness against the prisoner upon the trial was one Mary Castleberry, and he moves for a new trial in this court, upon the ground that his conviction was proved by the false testimony of said witness. The motion is based upon the affidavit of the said Mary Castleberry to the effect that her testimony on the trial was false in every material particular, and was induced by causes set out in the affidavit, and the affidavit of the prisoner that the term of the superior court at which the trial was had expired before the prisoner had any knowledge or information of the fact upon which the motion is based, and that the affidavit of the said Mary Castleberry was without the procurement of the prisoner, and in fact that he had no knowledge that such an affidavit would be made until informed by his counsel, and could not avail himself of it in the court below.

The able counsel who so faithfully represented the prisoner admits that the motion cannot be allowed without a reversal of the rulings of this court heretofore made, but he earnestly insists that we shall review and reverse these rulings. Upon careful examination, we must adhere to the principle, judicially settled, that in criminal actions the appellate jurisdiction of this court is limited to a review and correction of errors in law committed in the trial below. State v. Jones, 69 N.C. 16; State v. Starnes, 94 N.C. 973. The application is based upon the affidavit of a witness who was an accomplice, and who now makes oath that her testimony on the trial was false. How far the jury might have given credit to her testimony, impeached as it was, but for the corroborating facts and circumstances, we cannot determine; but the executive is invested with the pardoning power, and has the discretion, not only to consider facts that may be made to appear after the trial, of which the jury could have no knowledge, but to review and consider all the facts; and the extreme injustice and wrong which may often result from a refusal of this court to assume the discretionary power, so earnestly pressed upon us by the learned counsel, can find a remedy there.

The preliminary motion cannot be allowed, and we proceed to consider the error assigned in the record.

The indictment, in different counts, charges--First, that the defendant, in the night of October 15, 1886, feloniously and burglariously did break and enter the dwelling-house of Samuel A. Thaxton, situate in the county of Durham, etc., and did feloniously and burglariously steal $60, the property of Samuel A. Thaxton, second, that he feloniously, burglariously, etc., entered the dwelling-house of Eva C. Thaxton, etc., and did steal, etc., $60, the property of Eva C. Thaxton, etc.; and third, that he feloniously, burglariously, etc., entered the dwelling-house of Eva C. Thaxton, and did steal $60, the property of Samuel A. Thaxton, etc.

1. Mary Castleberry, a witness for the state, was impeached upon the cross-examination, and upon such examination had testified that she had gotten money for the prisoner before; that in January, 1886, the prisoner told her to get $1.75 from Mrs. Thaxton, and that she got the money from Mrs. Thaxton for the prisoner, but was caught in the act of stealing it, and it was taken from her by Mrs. Thaxton. With a view of corroborating this witness, the solicitor asked S. A. Thaxton, a witness for the state, whether she had made any statement to him about her relations to the prisoner as testified to by her. The witness was permitted to answer, under objection by the defendant, that she had made a statement, which as given by the witness was substantially that given by her. The witness, Mary Castleberry, was impeached, and it was competent to support her by proving that she had made consistent statements at other times. It was competent, not as substantive evidence of the truth of what she said, but only to corroborate her. State v. Parish, 79 N.C. 610; March v. Harrell, 1 Jones, (N. C.) 329. Even the witness impeached may testify as to consistent statements previously made. State v. Whitfield, 92 N.C. 831.

2. Mary Castleberry had testified, on cross-examination, that for three years she had been the kept mistress of the prisoner, and that he had frequently visited her on the Thaxton premises. With a view of corroborating her, S. A. Thaxton was asked if she had made any statement to him about the prisoner coming on his premises as testified to by her. The witness was permitted to answer, under objection by the defendant, and gave the statement of the witness made to him, to the same purport as that testified to by her. This was competent for the same reason, and for the same purpose, as the preceding evidence.

3. C B. Green, a witness for the state, testified that he was the committing magistrate before whom the preliminary examination was had; that upon that examination the prisoner was cautioned, and informed of his right to refuse to answer, etc.; that "after this caution had been given, and after Thaxton had testified that he had lost $60.00, the prisoner voluntarily offered himself as a witness on his own behalf. *** The defendant objected to witness testifying to what prisoner testified to, because there was no evidence of any identification of the $60.00." The witness testified, under objection, that on the examination the prisoner testified that in October he had $60, which he had borrowed of Warren McCanley of Alamance county. The witness S. A. Thaxton was permitted to testify, under objection by the defendant, to the same statement made by the prisoner. To show that the statement made by the prisoner as to how he came into possession of the $60 was false, the state introduced Warren McCanley, who testified, under objection, that he never loaned the prisoner any money, and that he lived in Alamance county. The objection cannot be sustained. It was competent to show that the prisoner had made false or contradictory statements in regard to the substantive matter of the crime with which he was charged. ...