State v. Starnes

• Decision Date: 28 February 1886
• Citation: 94 N.C. 973
• Court: North Carolina Supreme Court
• Parties: STATE v. ALBERT STARNES.

94 N.C. 973

STATE

v.ALBERT STARNES.

Supreme Court of North Carolina.

February Term, 1886.

INDICTMENT for rape, tried before Phillips, Judge, and a jury, at Spring Term, 1885, of the Superior Court of UNION county.

The defendant was convicted, and from the judgment of death pronounced, appealed.

Attorney-General, for the State .

Messrs. J. T. Strayhorn and D. A. Covington, for the defendant .

SMITH, C. J.

The prisoner is charged with having committed a feloneous assault and rape, upon the body of Rosa Ann Hyatt, in an indictment which the record, after setting out the names of the grand jurors and the appointment of their foreman, says, was by them “returned into open Court, by the hands of J. M. Terrell, foreman,” on Tuesday of the first week of Spring Term, of Union Superior Court, with endorsed thereon over the foreman's signature, “a true bill.” Upon its being made to appear to the Court that the prisoner was without counsel and unable to employ any, the Court assigned, as such, four members of the bar, to conduct his defense, one of whom, on account of illness, was afterwards excused from serving.

Upon arraignment, he entered his plea of not guilty, and a day was fixed for his trial, and an order made for the issue of a special venire, returnable at that time. The trial after it began, continued for several days, and terminated in a verdict declaring the prisoner “guilty of the felony and rape wherewith he is charged.” The prisoner's counsel moved for a new trial, and in its support assigns the following alleged errors:

I. In the admission of incompetent evidence;

II. In rejecting competent evidence offered for the defendant;

III. In declining to give instructions asked for him;

IV. In instructions given;

V. In other irregularities occurring during the progress of the trial.

The meaning of these vague and general terms, must be sought in the specific exceptions contained in the record of the proceedings at the trial before the jury. The motion for a venire de novo was denied, and sentence of death having been pronounced, the prisoner appealed to this Court, and was allowed to do so, without giving security for costs, as authorized under The Code, §§1234 and 1235.

In getting a jury, five were taken from the original panel, and the others from those summoned upon the special venire. Of the latter, two were challenged by the prisoner, and cause assigned, in that they had within two years preceding, served as jurors in the Court, and had suits then pending and at issue. The challenges were overruled, and to this ruling the prisoner excepted.

1. We deem it needful only to say, that a similar objection to such jurors was raised in State v. Carland, 90 N. C., 668, and decided to be untenable.

2. The prosecutrix was examined at great length as to the transaction, and her means of identifying the accused as the author of the outrage, which was perpetrated at her house during the night of November 28th, 1884. Her testimony was explicit as to the commission of the crime and its attending circumstances, in many of which there was corroborating evidence from others, and the cross-examination was mainly directed to the question of her ability to recognize and identify the person of the accused.

The prisoner, examined in his own behalf, testified that he did not commit the act of violence with which he is charged; was not at the house of the prosecutrix when it is said to have occurred; and was at another place; in which he was sustained by other witnesses produced.

It was in proof, that the prosecutrix had, on a previous occasion, sued out a warrant against two other persons, Bob Belk and Jim Belk, for the same offense, and the prisoner now proposed to show, that he had caused a subpœna to issue for them as witnesses, to which the sheriff had made return, that they were not to be found. This evidence, on objection from the solicitor, was ruled out, and to this the prisoner makes his second exception.

The proposition is to receive in evidence the prisoner's own act, or that of his counsel, in an unsuccessful effort to procure the attendance of certain witnesses in his own behalf, from whom favorable testimony was expected. How does this fact tend to disprove the charge, or to discredit the witness? It may be, that their testimony, if obtained, would be of service to the prisoner, but we cannot assume what they would swear, and the mere fact that they are not present, because they could not be summoned, authorizes no inference for the jury to make, as to what they would testify. We are unable to see the relevancy of the proposed evidence, and as impertinent to any issue, it was properly rejected.

III. The third exception is also to the rejection of evidence, and grows out of these facts;

A witness for the State testified, that the character of one Lila McMillan, who was examined for the prisoner to prove an alibi, was bad; and on his cross-examination, that he had heard some things about her honesty; that she had been charged with larceny--had given bail and “went to South Carolina; that on her return, she had not been prosecuted, so far as he knew.” Thereupon the prisoner's counsel proposed to ask this further question: “Is it not difficult for an insolvent colored person to give bond when charged with larceny?” The question, on objection, was not allowed to be put to the witness.

This exception must be summarily disposed of. The inquiry, as we understand its object, is to explain the act of the impeached witness in leaving the State, and avoiding an arrest and imprisonment, and her voluntary return, as indicating her conscious innocence.

The question was rightfully excluded, for the reasons assigned by the Solicitor. It was immaterial and irrelevant--a matter of opinion and argument, rather than of fact--and all the material facts for the inference were already before the jury.

The instructions asked for the prisoner, are drawn out at considerable length, and as those given are not responsive seriatim, as a whole, it becomes necessary, in passing upon the exceptions relating to them, to set out both in full. Those asked are as follows:

I. It devolves upon the State, before the defendant can be convicted, to prove beyond any reasonable doubt, that the crime charged in the indictment has been committed. II. It devolves upon the State also, to prove beyond a reasonable doubt, that the prisoner is the guilty perpetrator of the deed.

III. The State relies upon circumstances, and before the prisoner can be convicted upon evidence of this kind, the circumstances must all concur, in showing that the prisoner committed the crime, and exclude every reasonable hypothesis of his innocence.

IV. It is a rule of law to be acted on by the jury, that no conviction can be had upon circumstantial evidence, unless they are as thoroughly satisfied of his guilt, as if a reputable person of good character, and an eye witness, had sworn to the fact.

V. If the jury believe that the prosecutrix had an opportunity to disclose and make known the outrage alleged to have been committed on her person, the fact that she did not make such disclosure, and of the name of the party, until a considerable time thereafter, raises a strong presumption against the truth of her statements.

VI. In passing upon the question of guilt, the jury should consider the fact, that rape is a crime easy to be alleged, and hardest of all others to be disproved by one charged, though he be innocent.

VII. In all criminal prosecution, the defendant is entitled to a verdict, if there remain in the minds of the jury, a reasonable doubt of the prisoner's guilt; and while this is true in all trials for crime, it is much more so in cases of capital felony, where stronger and more cogent proof is required, than would be in simple misdemeanors.

VIII. Every person accused of crime, is presumed to be innocent, and while the evidence may not make the same impression on the mind of every juror, it is yet probable that consultation will lead all to the same conclusion; if not, that the whole jury upon the fair and honest doubt of part of them, will adopt a conclusion favorable to the prisoner, since in case of doubt, the law leans to the presumption of innocence.

Upon the prisoner's request through his counsel, the Court, in place of the...