State v. Speaks
| Decision Date | 31 October 1886 |
| Citation | 95 N.C. 689 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ALLISON SPEAKS. |
MOTION for judgment of death against the prisoner, heard before Boykin, Judge, at August Term, 1886, of IREDELL Superior Court.
The prisoner was charged with the crime of murder in a bill of indictment found by the grand jury at the Term of Iredell Superior Court, held on the fourth Monday before the first Monday in September, 1885, was put on trial, found guilty and sentenced to death at the succeeding term, held on the ninth Monday after the said first Monday in September. He appealed to the Supreme Court, and after a careful examination of the numerous exceptions taken to the rulings of the Judge, among which was the denial of a motion in arrest of judgment, no error was found in the record, and the Superior Court was directed to proceed to final judgment. The prisoner was again brought to the bar of the Superior Court at the term held in August last, and upon being asked if he had anything to say why sentence of death should not again be passed upon him, he interposed again a motion in arrest of judgment, assigning as the ground thereof that the Judge who presided at the trial had also presided at the previous term when the grand jury acted on the bill, in violation of the Constitution, and that the trial and conviction were illegal and void. This motion was overruled and the death penalty adjudged, from which the prisoner again appealed. Accompanying the record was the following finding of facts by the Court:
Attorney-General, for the State .
Messrs. R. F. Armfield and Jno. Devereux, Jr., for the defendant .
SMITH, C. J. (after stating the case).
It is too plain a proposition to require support from argument or precedent, that whatever defences were set up, or could have been set up, upon the hearing of the former appeal, are conclusively determined in that adjudication, and are not reviewable in the present appeal. Controversies would never be settled if this practice were allowed, and successive appeals, but successive experiments, none finally disposing of the cause; Mabry v. Henry, 83 N. C., 298. As the defence now sought to be set up could as well have been made available when the first appeal was taken, it has passed into the domain of res adjudicata, and cannot now be pressed into service. If a series of appeals were allowable under such circumstances, they might be the means of an indefinite postponement of the execution of the judgment, and perhaps defeat it altogether. We do not say that a judgment not authorized by law and unlike that upheld may not be reviewed and reversed by appeal.
Undoubtedly such new error...
To continue reading
Request your trial
-
Baker v. State
...business to transact." See also, State v. Carroll, 38 Conn. 449; Clark v. Commonwealth, 29 Pa. 129; Sheehan's Case, 122 Mass. 445; State v. Speaks, 95 N.C. 689." Id. 77 Md. at 115, 26 A. at In 1938, this Court was asked to determine whether a writ of mandamus commanding a justice of the pea......
-
State v. Graham
...the prisoner's first exception must be overruled. Burke v. Elliott, 26 N.C. 355, 42 Am. Dec. 142; Gilliam v. Reddick, 26 N.C. 368; State v. Speaks, 95 N.C. 689; State Turner, 119 N.C. 841, 25 S.E. 810; State v. Hall, supra; State v. Wood, 175 N.C. 809, 95 S.E. 1050; State v. Montague, 190 N......
-
Wingler, In re
...N.C. 196, 12 S.E. 1005, 12 L.R.A. 202, 23 Am.St.Rep. 51; State v. Lewis, 107 N.C. 967, 12 S.E. 457, 13 S.E. 247, 11 L.R.A. 105; State v. Speaks, 95 N.C. 689; Norfleet v. Staton, supra; Ellis v. N. C. Institution, 68 N.C. 423; Culver v. Eggers, 63 N.C. 630; Swindell v. Warden, 52 N.C. 575; C......
-
State v. Perry
... ... The attorney general contends that those matters are res judicata. Where there is an affirmance of a judgment, this necessarily is an adjudication upon every assignment of error, and of any matter which might have been urged (whether it was or not) in arrest of judgment. State v. Speaks, 95 N C. 689. But here there was a new trial ... granted upon another point, and the judgment was only res judicata upon the errors ruled upon in the opinion. Of course, errors assigned in the former trial as to matters occur ring in the progress of that trial, as the admission of evidence, ... ...