State v. Scott

• Decision Date: 30 June 1820
• Citation: 8 N.C. 24
• Court: North Carolina Supreme Court
• Parties: THE STATE v. MASON SCOTT.

8 N.C. 24

THE STATE

v.MASON SCOTT.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1820.

1. A person called as a juror in a capital case said, on oath, that he had not formed nor expressed an opinion respecting the guilt or innocence of the prisoner; and, after the verdict, it was proved that he had declared a few minutes before to a third person, "that he could not serve because he had made up his opinion," which was unknown to the prisoner at the time he accepted the juror.

2. Held, that there shall not be a new trial—first, because such declaration was not on oath; and, secondly, because it is contradicted by the juror on oath.

3. If the insanity of a juror be alleged as a reason for a new trial, being a disqualification so easily perceptible from its nature, it must be proved by clear and full evidence.

4. The declarations of a party cannot be offered in evidence on his behalf in any case, unless they accompany acts and be pars res gestae, and are offered as such. They are not admissible even to show the insanity of a prisoner.

5. Held, therefore, where a prisoner had committed homicide at 10 o'clock at night of one day, that evidence of what he said the next morning could not be received to prove his derangement.

6. The property in a slave is not of the essence of the offense of the murder of him, and it is immaterial whether it be laid in the indictment or not; hence it need not be proved upon the trial as laid. Quere—if the property be proved to be different from that laid?

7. If a statute take away clergy from any offense, and another statute, either prior or subsequent, create that offense by its known, legal and technical name, all the qualities of its name will attach to it; hence it will stand ousted of clergy.

8. The statute, 23 Hen. 8, c. 1, ousted murder of clergy. Our act of 1817, c. 18, gives to a slave the character of a human being and places him within the peace of the State, so far as regards his life.

9. Hence, it is held, that one convicted of willfully killing a slave with malice prepense is guilty of murder and not entitled to the benefit of clergy.

THE prisoner was indicted, tried and convicted at the Superior Court for WAKE at April Term, 1820, before Paxton, J. He was charged with the murder of "a negro man slave, Caleb, the property of Frederick S. Marshall"; and the indictment concluded "contrary to the form of an act of the General Assembly and against the peace and dignity of the State."

The prisoner was allowed to ask the jurors upon oath as they were called to the book whether they had expressed or formed an opinion unfavorable to him? One Daniel Peck, being called, was thus interrogated, and replied that he had not formed nor expressed any opinion respecting the guilt or innocence of the prisoner, and he was then elected and sworn on the jury. The deceased was slain with a dagger about 10 o'clock at night. One ground of defense taken on behalf of the prisoner was that he, the prisoner, was insane at the time, to prove the truth whereof his counsel offered to give in evidence his own declarations in connection with his conduct the next morning after the homicide to be considered by the jury in connection with his conduct before the homicide, and on the same night and within a few minutes of the time of giving the stroke. But the court rejected the evidence of the declarations and conversation of the prisoner on the morning succeeding the homicide.

For the purpose of showing the deceased to be the property of F. S. Marshall the Attorney-General called a witness who proved that he had long known Caleb; that he had formerly belonged to one S. Marshall, and continued to be his property until he died several years ago, leaving an only child, who is the said F. S. Marshall, a minor. The prisoner's counsel moved the

court to instruct the jury that the evidence did not sufficiently prove the property as laid in the indictment; but the court refused to give the instructions as prayed for, and, on the other hand, instructed the jury that the evidence, if believed, was sufficient.

After the verdict a new trial was moved for upon the four grounds following:

1. That the juror Peck had made up an opinion against the prisoner before he was sworn.

2. That the same juror was insane and without capacity to be a juror.

3. Because proper evidence offered on behalf of the prisoner had been rejected.

4. For misdirection of the court upon the proof of the title of the deceased.

The first reason was supported by the affidavit of a person who swore that he was standing near to Peck when he was called as a juror, and that he asked him if he meant to serve on the jury, to which he replied "no, I cannot, for I have made up my opinion," and that in a few minutes he was sworn and took his seat in the jury. The second reason was also supported by two affidavits; the one made by a physician, who swore that twelve months before that time Peck had been deranged by intemperance; that he had seen him within the week of the trial intoxicated, and from that circumstance thought it probable that his mind was deranged; the other made by a mechanic, who swore that Peck came to his shop before breakfast on the day of the trial and his conduct was so strange and his expressions so absurd that he believed him to be deranged. The court overruled the motion. The prisoner then prayed the benefit of clergy, but the court refused to allow it and passed sentence of death on him, and he appealed to this Court.

TAYLOR, C. J. All felonies were clergiable at thecommon law; that is, all who could read were burnt in the hand. The question is whether murder has not been ousted of clergy.

HENDERSON, J., after stating the facts and thequestions as they appear upon the record: The ground of the first reason for a new trial is not sufficiently proved. Ruth states that Peck informed him that he had formed an opinion. When Peck said so he was not on oath, and when offered as a

juror he denied it on oath. The second reason is in the same situation. It does not appear what was the state of Peck's mind at the time he took his seat as a juror. One of the witnesses speaks of his situation twelve months past; and although he saw him drinking during the week of the trial he does not pretend to say that his mind had actually become affected, but concludes that possibly it might. The affidavit of the other witness does not prove anything; and both taken together can scarcely raise a doubt much less satisfy us that the juror was deranged when he was sworn on the jury. The nature of the disqualification would render it perceptible to many of the numerous bystanders who commonly surround a court, and more full and satisfactory evidence of the fact, if true, should have been produced.

Were I left to myself, unshackled by adjudications, I must confess that I...