State v. Teachey
| Decision Date | 21 March 1905 |
| Citation | 50 S.E. 232,138 N.C. 587 |
| Parties | STATE v. TEACHEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Duplin County; Moore, Judge.
Dan Teachey was convicted of murder, and appeals. Affirmed.
In a prosecution for homicide the affidavit made by deceased containing his dying declarations may be used by witnesses who were present when it was made to refresh their memory though the paper was not admissible in evidence.
The prisoner, Dan Teachey, was tried at August term, 1903, for the murder of one Rivenbark in the county of Duplin. The grand jury which indicted him was drawn prior to a revision of the jury boxes on the first Monday in June, 1903. He was tried and convicted of murder in the first degree at August term, 1903, and appealed to the Supreme Court. A new trial was ordered for error in reception of evidence. At August term, 1904, the cause came on to be heard again. So far as the record discloses, no plea in abatement was filed, or motion made to quash the bill for irregularity in selecting grand jury or other cause. At said term the prisoner challenged the array of jurors for irregularities in revising the jury lists and boxes, which motion was sustained. At October term, 1904, the cause was tried, commencing second week, November 7th, before Moore, J., and a jury. The prisoner was convicted of murder in the first degree, and appeals to this court.
James O. Carr and Kerr & Gavin, for appellant.
The Attorney General and Stevens, Beasley & Weeks, for the State.
The prisoner again challenged the array of regular jurors summoned for the second week, as well as the array of special veniremen. From a very full and complete finding of facts upon the hearing of such challenge we condense the following At August term, 1904, the challenge to the array was sustained because of irregularities in the revision of the jury boxes prior to the drawing of the jurors at the June 1903, meeting of the commissioners of the county. In consequence of such ruling of the court, the commissioners revised jury lists anew on the first Monday in September, 1904. All names in boxes 1 and 2 were revised and destroyed. The board then caused to be laid before them the tax lists for 1903, and from those lists selected the names of such persons as had paid taxes and were of good moral character and sufficient intelligence, and also they selected such other citizens of the county as did not appear on the tax lists, but who were legally eligible and qualified to serve as jurors. The names thus selected were declared to be the jury list for the county, and were placed by the commissioners in box No. 1. At the time of the destruction of the scrolls mentioned there were in the boxes the names of persons eligible for jury duty. The effect of this revision, of course, was to provide an entirely new jury list for the county, composed of all the citizens of the county of good moral character and otherwise qualified as jurors. On the first Monday in October, 1904, the 36 regular jurors required for the first week and the 18 jurors required for the second week of October term were drawn in the manner required by law. In drawing these jurors for the first week, the names of those who had served within two years were rejected, and placed in box No. 2; but no names whatever were rejected in drawing the 18 jurors for the second week. The court overruled the challenge to the array, and the prisoner excepted. In such ruling we find no error.
In reviewing the action of his honor, it is useless to discuss or pass upon the legality of the act of the commissioners at their October session, when drawing the jurors for October term. Whether they had the right, after a name is drawn out of box No. 1 in due course by the small boy, to return it to box No. 2, instead of placing the name on the list of jurors to be summoned for the court, is immaterial in this case. The fact is found that no name was rejected in drawing the jurors for the second week, and that the prisoner's trial began on Monday of that week. The bill of indictment was returned several terms before by a grand jury drawn in 1903. So the prisoner has not been prejudiced thereby, so far as we are able to see.
The action of the board in revising the jury list anew at September term, 1904, seems to have been rendered necessary, or at least advisable, by reason of the ruling of the court in this case at August term preceding, upon the prisoner's challenge to the entire panel of jurors, which challenge was sustained, and the panel set aside for errors which his honor thought vitiated the action of the commissioners at their meeting in June, 1903, in revising the jury lists for the county. The particular act complained of is that at the September term, 1904, the board destroyed all the old scrolls remaining in the boxes, and made an entirely new jury list, and placed the names in box No. 1. The facts found by the court below show plainly that not only was there no wrongful purpose or intent, but that the commissioners acted with great care, and in a manner indicating a conscientious discharge of their duty. We do not hold that this action of the board was illegal or irregular, but at most it could be no more than the latter. That would not vitiate the list of jurors drawn from the box, and constitute no ground for challenge to the array. The statute is considered directory so far as it relates to the action of the commissioners as to the time and place of drawing the jury and as to revising the jury lists. It is the duty of the commissioners to do these things at the time and place the law directs. But, if not so done, but are properly done at another time and place, they will be treated as irregularities. This is necessary to prevent delay in the administration of justice. Moore v. Guano Co., 130 N.C. 229, 41 S.E. 293.
Nor do we think that the prisoner can reasonably complain of the act of the commissioners in destroying all the old scrolls in the boxes. He had challenged the panel at August term, 1904, drawn from those boxes, upon grounds tending to vitiate the contents of the boxes, and the action of the commissioners at June term, 1903, in revising them. This challenge of the prisoner was sustained. The action of the board at September term, 1904, was eminently proper in view of the ruling of the court.
In recurring to the statutes regulating the revising of jury lists of the county and the drawing of jurors, Justice Connor, in State v. Alfred Daniels, 134 N.C. 648, 46 S.E. 746, says: "It has been held from the earliest period of our judicial history that the provisions of these statutes are directory, and not mandatory." In this case, and in the preceding one of Moore v. Guano Co., the cases are all cited and discussed, which bear at all on this subject. We therefore forbear any further discussion of them.
Exception No. 3, relating to challenge to an individual juror, is without merit, as the juror was stood aside for cause. Besides, the prisoner did not exhaust his peremptory challenges.
We proceed now to notice such of the prisoner's numerous exceptions noted during the trial and appearing in the voluminous record as we deem proper.
The evidence on the part of the state tends to show that the homicide occurred on Wednesday night, March 4, 1903, between 8 and 9 o'clock, at the house of Gilbert Johnson and Easter Williams, in Duplin county, which house was situated a little more than three miles from the home of Robert Teachey, with whom his son, the prisoner, resided. There were present in the house when the homicide occurred Gilbert Johnson, Annie Johnson, Easter Williams, and the four illegitimate children of Easter Williams. The evidence relied on by the state tends to show that the deceased left home a short time after dark, and went to the house of Easter Williams for the purpose of securing her services in working his strawberries; that he remained in the house a short time, and, after securing her promise to come on the following Monday, turned to leave the house, and after getting out of the door the prisoner approached him from behind the house or from the corner, making threats and using profane language, and shot the deceased. After the shooting, the deceased went in the direction of the home of J. E. Dixon, who lived about 180 yards from Easter Williams. Before reaching Dixon's house, the deceased fell, and in answer to his cries Dixon came, and found him in great pain, lying on his back in the middle of the road. To this witness the deceased said, "I am shot, and shot to die," adding, ""Dan Teachey is the man who shot me; I saw him and caught his voice." The deceased was then taken to his father's house, and died from the effects of his wounds between 5 and 6 o'clock p. m. on Friday following. There was also evidence tending to show the existence of illicit relations between Easter Williams and the prisoner, and that he was the father of Easter's youngest child. It also appears in the evidence that some time before the homicide the prisoner said he believed that Bob Rivenbark, the deceased, was going to Easter's house, and if he caught him there he would kill him; and that three weeks before the shooting the prisoner said, "I have two good guns, and am going to buy another one," adding that "he would kill any man he caught at his woman's house." In his defense...
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