State v. Whitson

• Decision Date: 06 December 1892
• Parties: STATE v. WHITSON et al.
• Court: North Carolina Supreme Court

16 S.E. 332

111 N.C. 695

STATE v. WHITSON et al.

Supreme Court of North Carolina

December 6, 1892

Appeal from superior court, Mitchell county; GRAVES, Judge.

Indictment against William Whitson and Thomas Whitson. Defendants were convicted, and appeal. Affirmed.

W. H Bower and W. H. Malone, for appellants.

The Attorney General, for the State.

CLARK J.

The pleas of former conviction, of former acquittal, and of former jeopardy were properly overruled. When the foreman responded, "Guilty of murder in the second degree," the judge very properly told the jury that such was not a verdict which could be rendered under our laws, and instructed them again as to what constitutes murder and what constitutes manslaughter. The foreman then expressed himself in favor of a verdict of manslaughter, but four of the jurors dissented. The jury were kept together from Tuesday until Saturday night, when the term of court would expire, and being polled by the court, each juror responded that he did not think the jury could agree. The court thereupon found the fact that the jury could not agree, and, the prisoners themselves assenting, ordered a mistrial. In this there was no verdict of either acquittal or conviction. The jury neither said nor intended to say that the defendants were not guilty. They refused to assent to a verdict of manslaughter. They did not agree upon any verdict which was responsive to the issues. When they offered an insensible verdict, the court properly refused to receive it, and instructed the jury as to the verdicts which they could render. State v Arrington, 7 N. C. 571; State v. Hudson, 74 N.C. 246; State v. Whitaker, 89 N.C. 472; State v. Shelly, 98 N.C. 673, 4 S.E. Rep. 530. Upon the facts found, the court was justified in directing a mistrial after such lapse of time and effort to agree upon a verdict. State v. Honeycutt, 74 N.C. 391. Besides, the prisoners cannot be heard now to object on that ground, as they assented to the mistrial. State v. Davis, 80 N.C. 384. The drawing of the jury from the box was authorized by the statute, (Code, § 1739,^[1]) and is favored by the courts, though the requirement of the statute is not mandatory, (State v. Brogden, 16 S.E. Rep. 170,--at this term.) This section provides that the jurors so drawn should be freeholders. The mode adopted by the judge to ascertain that fact was unobjectionable. It could not prejudice the prisoners, who had no right to have any but freeholders upon the special venire; though, if the judge had drawn the names from the box without this precaution, it would not have been error, since either the state or defendant could, at the trial, when any juror was presented, have challenged him for the lack of any legal qualification. But the course pursued by the judge was commendable.

The dying declarations of the deceased were given in evidence by several witnesses. One witness, a justice of the peace, stated that he wrote them down at the time, and swore the deceased to the truth of the statement. This written statement the witness used to refresh his memory, and he repeated itverbatim to the jury, so the case on appeal states. The solicitor offered to permit the witness to read the writing to the jury. The prisoners except upon the ground that the written statement was the best and primary evidence. This contention is unfounded. The declarations made by the deceased were verbal. That the witness wrote them down at the time gave the writing no higher dignity. Their sole use was to refresh the witness' memory. Nor does it add to their value that the deceased was sworn to the statement. The statement was not signed by the deceased; but, had it been signed as well as sworn to, it would have made no difference. If the deceased spoke under belief of impending death, his declaration has all the validity of a statement under oath, and swearing him to it or signing it could not add to its validity; nor would the fact that the witness wrote it down have other effect that a memorandum to refresh his memory. Certainly the prisoners cannot object, since the solicitor offered that the witness should read the paper to the jury, which was declined.

It was not error to reject the offer to show that several hours after the shooting one of the prisoners went to the house of the dying man, and offered to wait upon him. This was no part of the resgestæ, and a party cannot be allowed thus to make evidence for himself after the event. The defendants fled the state, and had been absent many years when arrested and brought back. We fail to...