State v. Swink

• Decision Date: 31 December 1836
• Court: North Carolina Supreme Court
• Parties: THE STATE v. HENRY SWINK.

19 N.C. 9

THE STATE

v.HENRY SWINK.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1836

1. Where the propriety of admitting testimony in the court below, depends upon an inference of fact, such inference must be drawn by that court; and the admission of testimony founded upon such inference, cannot be assigned as error in the Supreme Court.

2. Where it appeared upon a trial for murder, that the deceased came to her death in part by strangulation with a rope, and the prisoner while before the examining magistrate, but before the examination had begun, said—in reply to a bystander who had a rope in his hand, —"that is not the rope;" upon which the magistrate observed to the prisoner, "keep that to yourself;" it was held, that the prisoner's declaration was admissible in evidence against him, whether he desisted from speaking further of his own accord, or at the suggestion of the magistrate.

3. When a man, who is at full liberty to speak, and not in the course of a judicial inquiry, is charged with a crime and remains silent, that is, makes no denial of the accusation either by word or gesture, his silence is a circumstance which may be left to the jury, to be considered together with other circumstances, in deciding upon his guilt.

4. Where the judge, in charging the jury upon the subject of presumptive evidence in a capital case, stated that there were three grades, to wit, slight, probable and violent; that the jury was not to consider the first at all, but that they might act upon the two others, though the testimony must be such as to satisfy them, beyond a reasonable doubt, of the guilt of the prisoner; and further, that the circumstances must be as clear and as strong as the testimony of one credible and respectable witness—it was held, that taking the whole charge together, there was nothing in it of which theprisoner had a right to complain.

5. It is no ground for vacating the verdict, or arresting the judgment, for one of the jurors in rendering the verdict to declare, that being forced by the laws of his country, lie was bound to say, that the defendant was guilty.

THE defendant was tried at ROWAN, on the last Circuit, before Settle, J., for the murder of his wife.

In the course of the trial, it appeared in evidence that the deceased came to her death by a stroke upon her head, and by choaking and strangulation by means of a rope. It was then offered to be proved, on the part of the state, that the prisoner, when before the committing magistrate, and before his examination had commenced, said, in reply to an observation made by a person present who had a rope in his hand, "that is not the rope;" whereupon the magistrate said, "keep that to yourself;" and the prisoner said no more. This testimony was objected to, not because there had been any threats or persuasion, but because the prisoner, it was contended, had not by reason of the interruption, gone on to say all that he had intended to say: but the court overruled the objection, and admitted the testimony, because it did not appear to the Court that the prisoner intended to say any thing more, or that there was any examination in writing.

It appeared further in evidence, that before the prisoner was arrested, his mother-in-law charged him with murdering his wife, and said that his motive for so doing was, that he had had to pay some costs on his wife's account, a day or two before. This charge, it was proved, was made against the prisoner in his presence, at his own house, and when made that he was silent. His Honor charged the jury, that when a crime was charged against a person, in his presence and hearing, and he remained silent, it was a circumstance they might take into consideration in connection with other circumstances, in determining upon such person's guilt: That such evidence was not conclusive of the prisoner's guilt, but was only a circumstance to be taken into considerationwith other circumstances in deciding upon his guilt. Upon the subject of presumptive evidence, his Honor charged, "that there were three grades, to-wit, a violent presumption, a probable presumption, and a slight presumption; that the latter the jury were not to take into consideration; under the two former, they might act,—and gave them examples under each;—but the testimony must be such as to satisfy the jury beyond a reasonable doubt of the guilt of the prisoner; and further, that the circumstances must be as clear

and strong as the testimony of one credible and respectable witness."

Under these instructions the jury retired, and remained together about forty-eight hours, when having returned into court, and "being polled, and William S. Macay one of the jury being called on to say whether the said Henry Swink, the prisoner at the bar, was guilty or not guilty of the felony and murder whereof he stands charged, answered, that 'being forced by the laws of my country, I am bound to say he is guilty.'"

After his conviction, the counsel for the prisoner moved for a new trial;—

1st. Because the court had admitted improper testimony in permitting the prisoner's declaration about the rope, before the committing magistrate, to be given in evidence.

2ndly. Because the court had erred in charging the jury, that when a man, being charged with a crime, remained silent, his silence was an implied admission of his guilt.

3rdly. Because the court erred in charging the jury, that there were three kinds of presumptive evidence—probable presumptive evidence, violent presumptive evidence, and slight presumptive evidence; that the latter was not to be regarded by the jury; that the two first, either violent presumptive evidence or probable presumptive evidence, was sufficient for a jury to act upon in a capital case.

4thly. The prisoner's counsel moved for a new trial, or in arrest of the judgment, as might appear most proper to the court, on the ground that after the jury had been confined forty-eight hours, one of them, when called upon to pronounce the prisoner's guilt or innocence, and "being forced by the laws of my country, I am bound tosay guilty."

The motions for a new trial and in arrest of judgment being overruled, and sentence of death pronounced, the defendant appealed.

GASTON, Judge.—The prisoner was convicted at the last Term of the Superior Court of Rowan, on an indictment for

the murder of his wife, and from the sentence pronounced on that conviction has appealed to this court. Several objections are here taken by his counsel to the regularity of the proceedings below. It is alleged, in the first place, that the Court erred in permitting improper testimony to be received against him. The material circumstances set forth in the case as connected with the subject-matter of the exception, are these: It appeared from the evidence, that the deceased came to her death by a blow on the head, by choking, and by strangulation with a rope. The prisoner was arrested as her supposed murderer, and carried before a magistrate for examination. There, but before the examination had begun, one of the bystanders was making some remark respecting a rope which he held in his hand, when the prisoner said, "that is not the rope." The magistrate observed to the prisoner, "keep that to yourself;" and the prisoner said no more. Evidence of these matter having been offered, the prisoner's counsel objected that this declaration of his ought not to be received, because he had been prevented by the interposition of the magistrate from stating all that he then intended to say: but this objection was overruled, and the testimony received, because it did not appear to the court that the prisoner intended to say any more, and because there was no examination in writing.

In support of this objection it is insisted, that whenever the declaration of any individual is offered in evidence against him, the law requires that the whole of the declaration should be heard; that the spirit of this rule would be violated if a declaration left unfinished by reason of aninterruption could be received as testimony without the explanations which were intended to accompany it; and that the admonition of the magistrate in this case indicates...