State v. Starnes

• Decision Date: 16 May 1887
• Citation: 2 S.E. 447,97 N.C. 423
• Parties: STATE v. STARNES.
• Court: North Carolina Supreme Court

2 S.E. 447

97 N.C. 423

STATE v. STARNES.

Supreme Court of North Carolina

May 16, 1887

Appeal from superior court, Union county.

Indictment for rape.

The appellate court will not review a refusal of a new trial applied for on the grounds of newly-discovered evidence.

The Attorney General, for the State.

D. A Covington, for prisoner.

SMITH C.J.

When this cause was before the court on the former appeal of the defendant, (94 N.C. 973,) and no error was found in the record of which the prisoner could complain, application for an order for a new trial to be had in the court below was made upon the ground of the discovery of new and material testimony in favor of the accused since the former trial. The motion, so far as our own and the researches of counsel disclose, is without precedent in the administration of the criminal law on appeals to this court, and so fundamentally repugnant to the functions of a reviewing court, whose office is to examine and determine assigned errors appearing in the record, that we did not look into the affidavits offered in support of the motion, nor hesitate in denying it. When the decision was certified to the superior court of Union, in order that it should proceed to resentence the prisoner, his counsel, when inquiry was made of him if he had aught to say why judgment of death should not be pronounced against him, at fall term 1886, renewed the application for setting aside the verdict and granting the prisoner a new trial upon the same grounds, sustaining it by the evidence contained in several affidavits, that of the prisoner himself among them. The material new testimony, aside from that produced to show the use of due diligence in the preparation of the defense and the procuring of witnesses in its support at the first trial, is contained in the affidavit of Eugenia Moser, a witness summoned and then too ill to be present, and whose testimony her husband, Arch. Moser, stated to prisoner's counsel would be essentially the same as his own, in consequence of which information the trial was not delayed for her absence.

This affidavit, mainly, if not altogether, relied on, as bringing the application within the rule that prevails in civil suits, is reproduced in her own words, so far as they are pertinent to the inquiry: "It was about half an hour before 12 o'clock on a Friday night in November, 1884, when Rosa came to our house, and said that some one had outraged her. She did not tell us who had done it, nor did she accuse any one; said she knew who did it. She also said I have never told you all who did it." The affiant, after mentioning her going to the house of Rosa the next morning, and finding her sitting on the hearth crying, proceeds: "Just then Pomp Belk passed in a wagon. Rosa saw him and said, 'I believe that negro [pointing to Pomp] is the man who outraged me.' They asked me to see if he had boots on, and said the man who was here last night had boots on." At a subsequent time, when Pomp came to Mr. Moser's house and inquired for him, and then asked to see Rosa, who from fear would not go out, affiant states that Rosa again said: "I believe he is the man who outraged me; for he handles the same words that were handled to me last night. I think he is the man from his voice." In a second affidavit she states more fully the occurrences of the night when the crime was committed, and described what Rosa then detailed of the circumstances, in these words: "She said that the man who committed the outrage told her he would not hurt her, and said he was the same man who talked to her when she was picking cotton for John Whitley, and he was picking cotton for Billy Steele; that she knew who the man was, but was not going to tell any of us." Affiant further states that, after Rosa had gone to town for the warrant and returned, John Whitley came to the house of affiant, and said to Rosa he was afraid she had made a mistake and taken out the warrant for the wrong man, and that, something not understood having been spoken about Pomp Belk and John Dees, she told Whitley to go and have Pomp Belk put in the warrant.

The court declined to set aside the verdict and reopen the case, finding as follows: "(1) That the newly-discovered witness, Eugenia Moser, would testify to the matters set out in her affidavit, and that such matters are most probably true; (2) that this evidence would tend to discredit the prosecutrix, and is material; (3) That the prisoner has used due diligence; (4) that on the trial evidence was offered tending to discredit the testimony of the prosecutrix, and the newly-discovered evidence is cumulative merely; and (5) that it may probably change the result upon a second trial."

The court, upon these findings, refused a new trial in deference to the adjudication of the supreme court that a new trial should not be granted where the additional evidence is merely cumulative and impeaching and not independent. To this ruling the prisoner excepts, and, in answer to the same propounded interrogatory if he had aught further to say why sentence should not be pronounced, moved in arrest of judgment, for that (1) the record fails to show that the bill of indictment was returned into open court by the grand jurors as a body; and (2) the record affirmatively states the contrary. This motion was also overruled, and from the judgment of death pronounced against the prisoner he appealed.

Without stopping to inquire whether, at this late stage in the proceeding, and after an unsuccessful appeal to the supreme court upon alleged errors in law, such an...