State v. Upton
| Decision Date | 30 June 1828 |
| Citation | 12 N.C. 513 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JESSE UPTON. |
1. Upon a conviction of murder, the proper and formal entry of the verdict is "Guilty of the felony and murder in the manner and form as he stands charged, etc."; but when the jury thus responded, and the entry was "Guilty in manner and form as charged," the finding was held sufficient, and the prisoner not entitled to his clergy.
2. The deputy clerk of the court from whence a cause is removed may amend the transcript by the original record produced in court.
AFTER the new trial granted in this case (ante, 268) the cause was removed to Guilford, where it was again tried on the last circuit before his Honor, Judge Daniel. The only point made in the court below arose from the entry of the verdict, which was in the following words:
In the court below the counsel for the prisoner moved in arrest of judgment, contending that the verdict was defective.
This motion was overruled by the presiding judge. Theprisoner then prayed the benefit of the clergy; and his counsel insisted that the verdict was only equivalent to a conviction of manslaughter. The prayer for clergy was disallowed, and judgment of death awarded, whereupon the prisoner appealed.
In this Court several other reasons were assigned in arrest of judgment, but the Chief Justice, in his opinion, has given so
full a statement of them, and of those parts of the record upon which they were founded, that any addition to it would be superfluous.
The transcripts of the record in this case, coming from three several Superior Courts, are multifarious, and can only be understood by an attentive examination. It will, therefore, materially facilitate the decision of the case, and enable us duly to estimate the objections made by the prisoner's counsel, to exhibit a concise history of the cause from its commencement, as extracted from the several records sent up.
At September, 1825, the bill of indictment purports to have been found a true bill by a grand jury of Randolph County, in which the offense is laid to have been committed. This copy of the bill is free from the objection made to it, with respect to the Christian name of the deceased, for it is spelt "Anne" throughout. It is also free from the objection that it does not appear, except inferentially, upon what part of the person of the deceased the strokes were given; for it is directly charged that the mortal wounds were given upon the sides of the head of the deceased. But the defect of the transcript consists in not setting forth the name of the judge, or of the grand jurors— I should rather say, it omits to state them; for whether it is erroneous on that account I do not give any opinion,and the sequel will show it to be unnecessary.
The cause was continued until Fall Term, 1826, when the prisoner was arraigned, and pleaded not guilty, and upon his affidavit the case was removed to Davidson Superior Court. Nor does the transcript of the term when the removal was ordered state the presence of any judge.
The cause being thus in Davidson, the prisoner was tried and convicted at the Fall Term of that court, in 1826, upon which he moved for a new trial and in arrest of judgment, which motions were not disposed of at that term. But the prosecuting officer having suggested a diminution of the record, a certiorari was directed to Randolph to send up a complete one.
At the following term of Davidson Superior Court a transcript was sent up from Randolph, which stated the name of the judge and of the grand jurors. In one repetition of the name of the deceased in the copy of the indictment it is spelt Anny. By this transcript it also appears that the prisoner was arraigned, and pleaded as it is first above set forth. But it
appearing to that court still defective, a subpœna duces...
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State v. Utley
... ... the person. Therefore, the name as used in the judgment comes ... within the rule of idem sonans and is not a fatal variance ... For cases in which, upon identity being established, the ... principle has been applied in this State see State v. Upton, ... 12 N.C. 513, "Anne" and "Anny"; State v ... Patterson, 24 N.C. 346, 38 Am.Dec. 699, "Deadema" ... and "Diadema"; State v. Houser, 44 N.C ... 410, "William Michaels" and "William H ... Michal"; State v. Johnson, 67 N.C. 55, ... "Susan", "Susanna" and "Susie"; ... State v. Lane, 80 ... ...
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State v. Collins
... ... Runkins for Rankin, and Dulks & Helker for Helker & Duts, ut ... supra; also Willis Fain for Willie Fanes (State v ... Hare, 95 N.C. 682); Deadema for Diadema (State v ... Patterson, 24 N.C. 346); Michaels for Michal (State ... v. Houser, 44 N.C. 410); Anny for Anne (State v ... Upton, 12 N.C. 513); Hawood for Haywood (State v ... Covington, 94 N.C. 913); Susan for Susannah (State ... v. Johnson, 67 N.C. 55). In other states, among many ... names held idem sonans, and not a variance, the following can ... be cited at random: Allesandro and Alexander (Alexander ... v. Com., ... ...
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State v. Collins
...6S2); Deadema for Diadema (State v. Patterson, 24 N. C. 340); Michaels for Michal (State v. Houser, 44 N. C. 410); Anny for Anne (State v. Upton, 12 N. C. 513); Hawood for Haywood (State v. Covington, 94 N. C. 913); Susan for Susannah (State v, Johnson, 67 N. C. 55). In other states, among ......
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Cook v. Territory
... ... to law and the evidence in said cause." ... The ... third, fourth, fifth, sixth, eighth, eleventh, and twelfth ... assignments state causes for a new trial. Comp. Laws, p. 162, ... § 181. It was therefore necessary that they should be ... assigned as causes in the motion for a ... 117] Fitzgerrold v. People, ... 37 N.Y. 413; Kennedy v. People, 39 N.Y. 245; ... Leschi v. Territory, 1 Wash. Terr. 13; State v ... Upton, 12 N.C. 513; O'Connor v. State, 9 ... Fla. 215; Bilansky v. State, 3 Minn. 427, (Gil ... 313.) The verdict finds the plaintiff in error guilty of ... ...