State v. Smith

• Citation: 2 Ired. 402,24 N.C. 402
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1842
• Parties: STATE v. SCIPIO SMITH.

2 Ired. 402

24 N.C. 402

STATE

v.SCIPIO SMITH.

Supreme Court of North Carolina.

June Term, 1842.

Defendants in an indictment have a right to plead severally not guilty; but a general plea of not guilty by all the defendants, is, in law, a several plea.

Whether the trial shall be separate or not, is a matter of sound discretion to be exercised by the court under all the circumstances of the case.

The right to challenge a juror is a right to reject, not to select--and therefore neither of two defendants in an indictment on a joint trial has cause to complain of a challenge by the other.

Whether the trial be joint or separate, one defendant in an indictment cannot, until finally discharged, be a witness for another, and wherever the wife of one is not permitted to testify for the others on a joint trial, she will not be received for them although her husband be not then on trial.

The presumption that he, who is found in possession of stolen goods recently after the theft was committed, is himself the thief, applies only, when this possession is of a kind which manifests that the stolen goods have come to the possessor by his own act, or, at all events, with his undoubted concurrence.

Thus where the defendant Scipio Smith and two of his sons, who lived with him, were indicted for stealing tobacco, and the tobacco, which had been stolen in the night, was found the next day in an out house of Scipio, occupied by one of his negroes, and in which Scipio kept tobacco of his own, and the tobacco so found was claimed by him as his own, though proven to be the tobacco that had been stolen; held that it was error in the judge to charge the jury “that the possession of the stolen tobacco, thus found in Scipio Smith, raised, in law, a strong presumption of his guilt.”

An appeal from the Superior Court of Rockingham county, at Spring Term, 1842, his Honor Judge DICK presiding.

This was an indictment for petit larceny in stealing a quantity of tobacco, the property of one John T. Chambers. The defendants' counsel moved the court for leave to plead severally “not guilty” for each of the defendants, but the court refused the motion, and required them to join in their plea. The State examined several witnesses, and proved a variety of circumstances, tending to establish the charge against the defendants. Among other things, the State proved by the prosecutor, that his tobacco was stolen on Friday night, that he followed the track of a cart from near his tobacco barn to a house of the defendant, Scipio Smith, on the next morning--that said house was on the land of the said Scipio Smith, about eighty or one hundred yards from the dwelling-house of the said Scippio--that the witness then sued out a search-warrant against the said Scipio on the same day, Saturday, placed it in the hands of an officer, who, on the same day, opened the said house, and there found his (Chambers') tobacco, which he immediately claimed to be his, in the presence of the said Scipio Smith--that the said Scipio replied that the tobacco was his (Scipio's) property, that it was grown on a certain field of his, and had been put in this house by his direction. It was also proved that there was a quantity of other tobacco in the said house, and that a negro man, the property of the said Smith, occupied the said house. It was also proved that the defendants Gordon and William Smith were the sons of Scipio Smith, and lived with him. On this part of the case, the court charged that, if they believed the tobacco found in the said house to be the property of Chambers, and that it had been stolen on the night before, the circumstance of the tobacco being found in the possession of the defendant, Scipio Smith, so recently after it had been stolen, raised a strong presumption of guilt against the defendant Scipio, but raised no presumption of guilt against the other defendants. The jury found all the defendants guilty. The defendants' counsel moved for a new trial, 1st, Because the defendants were not permitted to sever in their pleas; 2ndly, Because the court charged the jury, that the tobacco being found in the possession of the defendant, Scipio Smith, as above stated, was a strong presumption of his guilt. The court overruled the motion for a new trial, and pronounced judgment against the defendants; from which judgment they appealed to the Supreme Court.

Attorney General for the State .

J. T. Morehead for the defendants.

GASTON, J.

It is assigned for error on the part of the prisoners, that, upon their arraignment, it was prayed by their counsel that they should be permitted to plead not guilty severally, and that the court refused this permission. We admit, without hesitation, that they should have so pleaded, and that the refusal of his honor was founded in a mistake of the law. But the record states generally that the defendants pleaded not guilty, and thereupon a jury was duly empannelled, and charged to try whether they were guilty or not guilty of the offence charged in the indictment. Now, in contemplation of law, the plea was a several one, and the jury was empannelled to try the question of guilt as to each of the defendants. No idea was entertained, much less such an extravagant position taken, that if one were guilty all were guilty. It distinctly appears in the case, that the jury was instructed, as to a part of the evidence, that, although it raised a strong presumption of guilt against one of the defendants, it raised no presumption against the others. As, therefore, no error appears upon the record, and the mistake set forth in the case was harmless and inoperative, we cannot reverse the judgment because of this exception.

It has been stated at the bar, and we have no doubt correctly, that the true question, intended to have been submitted to, and decided by, the court, was, whether the prisoners were entitled to claim separate trials, and that question has accordingly been here argued. Although it is not properly presented to us, we will not decline to express our opinion upon it. This question was fully examined in the case of the United States v Marchant & Colson, first in the Circuit Court for the District of Massachusetts, and afterwards in the Supreme Court of the United States. The case is reported in 1 Mason 158, and 12 Wheaton 480, and all the learning, applicable to the question, will be found stated, and ably illustrated, in the opinion of Mr. Justice Story. It was decided with entire unanimity, that the court had a power, and would ordinarily exercise it, to direct separate trials, at the request of the accused, when separate trials might be had without inconvenience, but that “this was a matter of sound discretion to be exercised by the court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence.” It was in that case objected, as it has been argued here, that if a joint trial were had, and the prisoners did not agree in the challenges, one might desire to retain a juror who was challenged by another; that a juror challenged by any one must be withdrawn from the panel as to all the prisoners, and that thereby the right of each prisoner to select his jury would be impaired. But to this it was answered by the court, that the right of challenge was a right to reject (not a right to select) jurors--that...