State v. Weaver

• Decision Date: 31 October 1885
• Court: North Carolina Supreme Court
• Parties: STATE v. CLITUS WEAVER.

93 N.C. 595

STATE

v.CLITUS WEAVER.

Supreme Court of North Carolina.

October Term, 1885.

Indictment for an AFFRAY, heard on appeal from the Inferior Court, by Gudger, Judge, at Fall Term, 1885, of BUNCOMBE Superior Court.

The indictment charged the defendant Clitus Weaver and one George Presley, with the commission of an affray, in mutually assaulting and beating each other in a public place.

When the case was called for trial, the defendant Presley pleaded ““former conviction,” and asked that the issue raised by this plea should be first tried; and the Court directed the Clerk to impanel the jury to try the one issue of former conviction. The Clerk being somewhat deaf, and not understanding the instruction of the Court, impanelled the jury in the usual form, to try the issues of traverse, joined between the State and the defendants Clitus Weaver and George Presley, as on the plea of “not guilty.” Witnesses were then introduced by the defendant Presley, who was sworn in the usual form, to testify in the case wherein the State was plaintiff, and Clitus Weaver and George Presley were defendants. Neither the Court nor the Solicitor for the State noticed or discovered the mistake of the Clerk in impanelling the jury and swearing the witnesses, nor had any knowledge thereof, until after the rendition of the verdict against the defendant Presley on the plea of former conviction, but the counsel of defendant Weaver did notice the manner and form of the impanelling the jury and the swearing of the witnesses at the time, but did not call it to the attention of the Court.

Weaver did not enter any plea, nor was this trial participated in by him or his counsel in any way whatever.

The defendant Presley offered on this trial, evidence of his previous conviction before a justice of the peace, for an assault on the defendant Weaver, and of the identity of that offence with the one charged against him in this case, and for this purpose he introduced in evidence the bill of indictment, the same not having been read to the jury at the beginning of the trial. In reply to the above testimony, the State, on cross-examination of the defendant Presley, who offered himself to prove the identity of the two cases, showed that the defendant Presley was cut or marked with an ordinary pocket-knife, and struck on the head with what seemed to be a rock, by the defendant Weaver. This testimony was not offered by the Solicitor against the defendant Weaver, but only to show that a deadly weapon was used in the fight between the defendants, and consequently that the justice of the peace had no jurisdiction to try and punish the defendant Presley. The Court charged the jury only upon the plea of “former conviction,” telling them the only question for them to consider, was whether or not the defendant Presley had already been tried and convicted for this offence by a Court of competent jurisdiction; that if a deadly weapon was used in the fight between the defendants, either by Presley or Weaver (and that an ordinary pocket-knife is a deadly weapon), the justice of the peace did not have jurisdiction of the case; that if they found that the defendant had been so tried and convicted by a Court of competent jurisdiction, their verdict would be: “We find the plea in favor of the defendant.” But if they should find that he had not been so tried, then the verdict would be: “We find the plea against the defendant.” The jury found, ““the plea against the defendant.” Counsel then, for defendant Weaver, moved that said Weaver be discharged. The motion was refused and Weaver excepted. After this motion, and before the jury left the box, it was suggested by the Solicitor for the State, that if the Court should think that the proceedings had, were such as to put Weaver in jeopardy, a juror should be withdrawn and a mistrial had as to him. The Court declined this suggestion, and discharged the jury, and counsel for the defendant Weaver thereupon again moved the Court for his discharge upon the ground of former jeopardy. The Court held, that upon these facts, Weaver had never been in jeopardy, and refused the motion. Weaver excepted.

Another jury was then impanelled in usual form to try the issues of traverse, joined between the State and the defendants Clitus Weaver and George Presley. The same bill of indictment was read to the jury, and each defendant pleaded ““not guilty.”

One Lynch, being introduced by the State, testified that he, in company with the defendant Weaver, passed a mill where they saw defendant Presley. The parties seemed friendly, but, when Weaver and witness were about leaving, Presley requested witness to make Weaver drink, and bring him back by way of the mill, in order that he, Presley, might give him a “damn good cursing” or “whip him.” Witness told Weaver of this request, who replied that he would go back by the mill “and see if Presley was mad with him,” but wanted to have no difficulty with him, and asked witness to note that he wanted no difficulty. The parties again stopped at the mill, and after some friendly conversation with Presley, Weaver...