State v. Shepherd
| Decision Date | 31 December 1847 |
| Citation | 30 N.C. 195,8 Ired. 195 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. JOHN SHEPHERD. |
OPINION TEXT STARTS HERE
A deed for land duly proved and registered is evidence, under our Statute, of the transfer of the land, upon every occasion on which it may be offered; as in this case, upon the trial of an indictment for murder.
An indictment for murder, which charges that the homicide was committed on the “ tweflth day of August,” instead of the twelfth day of August, is good, if not at common law, yet at least under our Statute, Rev. Stat. Ch. 35, Sec. 12.
An order of removal, directing that “the trial of the prosecution shall be removed,” &c., is sufficient without directing further that “ a copy of the record of the said cause be removed,” &c.
In an indictment for murder, if the time stated be anterior to the indictment, it is material and only material in one respect, and that is, that the day of the death, as laid, is within a year and a day of that of the wounding.
If that appears from the stating of the month, the day of the month is immaterial--according, at least, to the proper construction of our Act of Assembly, Rev. Stat. Ch. 35, Sec. 12.
The cases of the State v. Moses, 2 Dev. 452. and State v. Green, 7 Ire. 39, cited and approved.
Appeal from the Superior Court of Law of Columbus County, at the Fall Term, 1847, his Honor Judge CALDWELL presiding.
The prisoner was convicted upon an indictment for the murder of James Flowers, and moved for a venire de novo, and then in arrest of judgment; and after a disallowance of the motions, and sentence of death, he appealed.
On the trial, evidence was given on the part of the State, that the deceased was found, late in the evening, lying by himself on the ground, near the prisoner's house, and badly wounded by stabs in the breast; and he said he was dying and that the prisoner had killed him, and desired that the prisoner should be called. The witness called the prisoner; and after having at first refused he came to the deceased, and on being asked, why he had served the deceased so, he replied, “that he meant to do it,” and then showed a knife, with which, he said, he had inflicted the wounds. On the part of the State, evidence was further given, that the prisoner had antecedently said, that the deceased had bought his land at sheriff's sale, and that the day after he should get a deed for it, he would kill him, unless he gave it up. And then the solicitor for the State offered in evidence a sheriff's deed to the deceased for the land, duly proved and registered, and offered to prove that it had been delivered by the deceased to the register, to be registered the day before the homicide. The counsel for the prisoner objected to the deed being received in evidence, unless its execution was proved on the trial. But the Court received the evidence.
The indictment was found in Robeson Superior Court, at a term beginning on the 1st Monday after the 4th Monday of September, 1846; and runs thus: “The jurors, &c. present, that John Shepherd, late, &c. on the tweflth day of August in the year of our Lord one thousand eight hundred and forty-six,” &c., made the assault on the deceased, “then and there being,” and, “then and there” with a knife gave a mortal wound of &c. of which &c. “the said James Flowers then and there instantly died.”
On the affidavit of the prisoner, that he could not obtain justice in Robeson, the Court, on his motion, ordered, “that the trial of this prosecution be removed to the County of Columbus, and that the trial be had on Tuesday of the next term of said Court, and that the sheriff, &c. have the prisoner, &c. on Monday of the said Superior Court of said County of Columbus,” &c.
Attorney General, for the State .
No counsel for the defendant.
RUFFIN C. J.
A deed for land, duly proved and registered, passes the land by the express words of the Act of 1715; and it is necessarily evidence to that purpose upon every occasion on which it may be offered. For the purposes of this trial, indeed, it would only have been necessary to show, that the deceased professed to have a deed for the prisoner's land, and it would be immaterial whether it was genuine or not. But here it was prima facie genuine, and therefore was, at all events, properly received.
The Court has had some doubt of the sufficiency of the indictment, by reason of the false spelling of the day of the month. But, after consideration, we think ourselves obliged to let the sentence stand. We are inclined to the opinion that the indictment is good at common law, because, although the word ““tweflth,” is spelt wrong, by transposing the letter f, and placing it before, instead of after l, yet it is impossible to mistake the meaning. The false spelling makes no other word, that could mislead. But at all events, the Act of 1811, Rev. Stat. Ch 35, Sec. ...
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State v. Hefler
...See, State v. Pate, 121 N.C. 659, 28 S.E. 354 (1897); State v. Haney, 67 N.C. 467 (1872); State v. Baker, 46 N.C. 267 (1854); State v. Shepherd, 30 N.C. 195 (1847). This Court is not predisposed to extend the application of this rule to the crime of manslaughter, particularly in light of gr......
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State v. Hefler
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