State v. Shuford
| Decision Date | 30 June 1873 |
| Citation | 69 N.C. 486 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. EMILINE SHUFORD. |
On the trial of the mother for the murder of her infant child, it is error in the Court below to permit a witness to relate a statement made by the mother of the prisoner and in her presence, that the prisoner “had a child this way before, and put it away,” to which the prisoner made no reply, and the reception of such evidence entitles the prisoner to a new trial.
Evidence of a distinct, substantive offence cannot be admitted in support of another offence.
( Homesley v. Hogue, 2 Jones, 391, cited and approved.)
INDICTMENT for murder, tried at Spring Term, 1873, of CATAWBA Superior Court, before his Honor, Mitchell, J.
The prisoner, a colored woman, with one Geo. Haynes, (the latter not arrested,) was indicted for killing a new born infant, her child.
On Tuesday of the term, the prisoner was arraigned and pleaded “not guilty,” and a special venire of seventy-five jurors ordered to be summoned to appear on the coming Thursday. On Wednesday, the Solicitor for the State sent a new bill to the grand jury against the same parties for the same offence, which being found “a true bill,” the prisoner on that day was again arraigned and pleaded ““not guilty” to the second indictment, and on which the trial proceeded, and a special venire of seventy-five jurors again ordered. No nol pros. or any other order was made in the first case.
On Thursday morning, when the case was called, the prisoner's counsel asked leave to withdraw the plea of “not guilty,” to enable the prisoner to plead in abatement, the pendency of the first indictment and the arraignment thereon. The motion was refused, and the prisoner excepted.
Prisoner's counsel then moved to be allowed to enter the plea in abatement in addition to the plea of “not guilty.” Motion refused, and exception by the prisoner.
On the trial and during the calling of the original panel, one England, a juror belonging thereto, was directed by the Solicitor to stand aside, without being challenged for cause. No jury was obtained from the original panel, and the State without recalling and tendering England, proceeded to call the special venire, summoned on Tuesday. No other venire had been summoned by the sheriff under the order of Wednesday.
Prisoner's counsel then challenged the array of the special venire, and called attention to the order and the date of its execution, and also to the order made on Wednesday. This challenged was not allowed, and the prisoner excepted.
A juror from the special venire was called, and tendered by the State. After juror was sworn, prisoner's counsel asked him “if he had formed the opinion that the prisoner at the bar was guilty,” without first asking if he had formed and expressed an opinion. The State objected. Objection sustained, and the defendant excepted. Another juror was called and tendered. Prisoner's counsel proposed to swear and examine him as to his “unindifferency,” before challinging him for cause, and that after the juror had answered, he might then have the right to challenge. State objected, and the Court sustained the objection. Prisoner excepted.
Prisoner's counsel proposed to ask another juror whether he had paid his taxes for this year or the previous year. Question ruled out, and prisoner again excepted. The jury impanelled, the State called Betsy Seltzer, a colored midwife, who testified that she knew the prisoner; who in September last, lived in a negro village near Newton, at which time her person was very large, and as she, the witness, believed pregnant. That she was called to see prisoner, Wednesday, 4th of September, 1872; that she found her in a feeble, prostrate condition, lying on a pallet on the floor of the room in which the prisoner and her mother lived; that she examined her person and found that she had been delivered of a child, which witness thinks was born on Tuesday night.
There was no child there, and prisoner denied having been delivered of a child. Witness called again on Thursday evening, and found the prisoner quite feeble. Prisoner asked witness “if any white folks had come to her about the matter.” She was told “no,” but that witness expected them, and if anything was there, they would find it. Prisoner still denied the birth of the child. After dark, witness with prisoner's mother went to a church near by, leaving prisoner in the house alone, but before going, made arrangements with Adam Hoyle, Scott Hunter and Peter Byors, colored men, to watch the prisoner's movements and see if they could find the child. On her cross-examination, the witness stated that she saw no child on Wednesday or Thursday, though she understood numbers of persons searched for it. Witness further stated that the prisoner's box or chest contained a quantity of baby clothing, as generally prepared by pregnant women.
Witness further testified that about the time preaching closed, she learned that the child had been found near the house, and she went down there; there was a crowd assembled and much talk and commotion; she could not remember much that was said; witness saw the child lying on its face near the house on the ground; it was a black child, fully developed, and had one leg cut off just above the ankle; witness did not handle it; it smelled offensively; witness knew George Haynes, the prisoner indicted; he was a black man, married and lived about Newton for over a year, and for sometime previous to September, in a house near where the prisoner lived; witness had not seen him for some time; that he suddenly disappeared after the child was found, and she had not seen him since.
Dr. Campbell examined the child on Friday for the coroner's jury. It was a fully developed black child, with its forehead and face mashed in as from a blow by a blunt instrument; skull was broken, much contusion, but skin not cut; one of its legs was off just above the ankle, it seemed to have been cut one-third round with a knife, then the bone broken and the part torn off; that the lungs were inflated fully, swam in water and gave every indication that the child was born alive. Witness further described the appearance of the child, giving it as his opinion that it was killed.
Adam Hoyle, watched prisoner's house on Thursday night. Soon after witness and others had taken their position, they saw prisoner coming up to the house from a westerly course, about 30 or 40 feet from the door; she was in a stooping posture, and entered the door on the west side; witness, with Scott Hunter, went up to the chimney, which was low and unfinished, and peeped into the house and saw prisoner take off a black skirt and place it on the bed; they made a noise and prisoner blew out the light; witness and those that were with him, about this time, smelt something very offensive, which proved to be the child, and sent for Betsy Seltzer; she, with others, came and searched the house but found nothing; prisoner left the house at this time, when witness heard some one calling for a light, and when he got there he saw the child on the ground with its face to the earth; prisoner saw it and exclaimed, “Lord-y, what is that!” She afterwards acknowledged that it was her child, but said it was born dead; there was a number of negro men and women there, and much talking and confusion; after the crowd had partly dispersed, witness and others nailed up one of the doors of prisoner's house, so she could not get out, and then they sat down at the front door and in the house, and there remained all night to watch the prisoner; that during the night, when asked about it, prisoner said the child was hers, but was born dead. Counsel for the prisoner objected to the introduction of prisoner's declarations under the circumstances. Objection overruled, and prisoner excepted. Witness also testified that he knew George Haynes, and that he suddenly left soon after the child was found.
Lorenzo Bost, testified to the finding, &c., corroborating the other witness as to the facts above set out in his evidence; witness further stated, after objection by prisoner, that the prisoner's mother, in the presence of the prisoner and others, said that night that “she (the prisoner) had a child this way before, and put it away,” and the prisoner made no reply. The Court admitted the evidence, and prisoner excepted. This declaration of the mother was deposed to by other witnesses, and objected to by prisoner.
Other witnesses for the State were examined, but testified to no other material facts.
His Honor was asked by the prisoner's counsel to charge the jury:
1. If the child was killed while the prisoner was not present, the jury must acquit.
2. If there is any reasonable way to account...
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