State v. Thomas

Decision Date21 December 1887
CourtNorth Carolina Supreme Court

Appeal from superior court, Henderson county; BOYKIN, Judge.

The Attorney General, for the State.

J. C L. Gudger, for defendant.


The prisoner is charged with the crime of murder, committed upon the body of one Joseph R. Barnett, and, upon his plea of not guilty, was convicted and sentenced at fall term, 1887, of the superior court of Henderson. Upon the trial, the prisoner was examined as a witness on his own behalf, and gave evidence tending to reduce the crime to the grade of manslaughter. Upon his cross-examination, the solicitor prosecuting for the state put to him the following interrogatory: (1) "Were you accused of the commission of any offense in Alabama?" The prisoner, who had recently removed from that state to this, hesitated to make answer until he was instructed by his counsel to do so, and then said, "Yes." Thereupon, the solicitor propounded this further question: (2) "What offense were you accused of committing in that state?" The prisoner objected to being required to answer the question for the reasons: First, that the answer would tend to criminate him second, for that it was irrelevant; and, third, for that he cannot be compelled to give evidence against himself. The court overruled the objection, and the prisoner, in response said he had been accused of murder in Alabama, and the prisoner excepted. In admitting the testimony, the judge remarked, and repeated the remark in the charge to the jury, that the evidence could only be considered as affecting the credibility of the prisoner as a witness in the case.

The prisoner's testimony tended to reduce the grade of the homicide to that of manslaughter, while he admitted the killing to have been done with a pistol. The court charged the jury that the homicide, being admitted to have been effected by the use of a deadly weapon, the prisoner must satisfy you that it was committed under circumstances reducing the crime to manslaughter, and, in determining the degree of the offense, all the evidence, as well that produced by the state, as that produced by the prisoner, must be considered. The counsel for the prisoner asked an instruction to the effect that the case of the prisoner might rest upon the evidence coming from the state, and find matter there in extenuation or mitigation of his offense. To this suggestion the judge replied: "I have already instructed the jury that, in forming a conclusion as to whether the prisoner be guilty of murder or manslaughter, they must consider all the evidence in the case. The prisoner is permitted to rely upon acts, circumstances, and declarations proved by the state in order to acquit himself of the more serious offense, and I now again so charge the jury." Prisoner's counsel excepted to the instruction, for that, in laying down the rule as to the burden of proof, the judge did not, in terms, tell the jury that matters in mitigation might be shown in the testimony offered against the prisoner, but left this to be inferred from the language used in the request and in the charge in response.

After the retirement of the jury for deliberation, and to make up their verdict, they returned into court, and inquired: "If the jury are in doubt as to the truth of the testimony of any witness, is the prisoner entitled to it?" The judge replied to the inquiry, addressing the jurors, as follows: "You have been informed that the prisoner's admission of the killing with a deadly weapon imposes on him the duty of satisfying you that the act is manslaughter. In determining whether it be manslaughter or murder, it is proper for you to consider the character of the witnesses both for the state and the defendant; their interest in the result; their demeanor on the stand; the relationship of the witnesses for the state to the deceased, --for the purpose of ascertaining whether they are credible or not. Carefully analyze all the testimony; scrutinize and compare the statements of the different witnesses; ascertain the facts from the testimony; apply the facts to the law the court has announced; and if, upon all the evidence, after attaching such weight and importance to the testimony of each witness as, in your opinion, it merits, you are not satisfied that the offense is manslaughter, convict of murder. If so satisfied, convict of manslaughter, since the state is relieved of the burden of introducing any testimony upon such admission, and the onus as to all matters is on the defendant." The jurors expressed their content, and returned.

The prisoner again excepted, because the court did not say to the jury that the prisoner was entitled to the benefit of the doubt. The court had previously explained the law of homicide as applicable to the different aspects of the case as presented in the evidence, and to this there was no objection.

1. The first objection to be considered is to the compelling the prisoner to tell with what crime he was charged before removing from Alabama. When a prisoner, on trial for a criminal offense, shall avail himself of the right conferred by the act of 1881 (Code, § 1353) to become a witness on his own behalf, he occupies, as such, the same position that any other witness would, and exposes himself to the same discrediting and impeaching evidence. State v Efler, 85 N.C. 585. This results from the necessity of ascertaining the value and weight to be given to his testimony by the jury; and it is certainly a material inquiry whether the witness is entitled to credit, and deserving their confidence in the truthfulness of his statements. In the absence of direct rulings on the point, it would seem that a question ought not to be allowed to be put to an involuntary witness, not a party to the cause, the answer to which would criminate, so that the refusal to answer, and the inferences to be drawn from it, would be almost, if not quite, as prejudicial and disparaging as a direct and affirmative reply. In the language of BATTLE, J.: "It is manifest that the only mode by which a complete protection can be afforded to the witness is to prevent the question from being put at all." State v. Garrett, Busb. 357. But the ruling in this court has been otherwise, and, in the case cited, the refusal of the witness to answer the inquiry, "Have you not been indicted, convicted, and whipped in the county court of Warren for stealing?" was allowed to be commented on before the jury to the discredit of the witness. As the disparaging question may be asked, and a refusal to answer can be used to discredit, the judge, in...

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1 cases
  • State v. Larkin
    • United States
    • Missouri Supreme Court
    • 20 Mayo 1913
    ... ... constitute error in the case. Bagley v. State, 109 ... S.W. 1095; Eggleston v. State, 59 Tex. Crim. 542; ... Jackson v. State, 56 Tex. Crim. 28; State v ... Costner, 127 N.C. 566; State v. Parker, 172 Mo ... 191; Comm. v. McCabe, 163 Mass. 98; State v ... Thomas, 127 La. 576. (8) Where a defendant takes the ... witness stand, and fails to deny certain criminating ... testimony against him, then as a matter of law, there is a ... presumption of law that the criminating testimony not denied ... is true. State v. Preston, 77 Mo. 296; State v ... ...

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