State v. Whitt

• Decision Date: 19 December 1893
• Citation: 18 S.E. 715,113 N.C. 716
• Parties: STATE v. WHITT.
• Court: North Carolina Supreme Court

18 S.E. 715

113 N.C. 716

STATE v. WHITT.

Supreme Court of North Carolina

December 19, 1893

Appeal from criminal court, Buncombe county; Thos. A. Jones, Judge.

George Whitt was convicted of murder in the second degree, and appeals. Affirmed.

Chas A. Webb, for appellant.

The Attorney General, for the State.

CLARK J.

The prisoner was indicted for murder, and was convicted of murder in the second degree. There was a special venire of 150 men ordered and drawn from the box by the court. Code, § 1739; State v. Brogden, 111 N.C. 656, 16 S.E. 170. The prisoner challenged the array: (1) Because one of the men named on the special venire had removed from the county, and another was dead at the time the jury list had been revised by the county commissioners. (2) Because the sheriff had indorsed on the writ and list of special venire "Received 25th October, 1890, executed 30th October 1890, by summoning a jury of 150 men." The solicitor moved that the sheriff be allowed to amend his return, so as to show those of the list furnished him by the clerk who were actually summoned, and those of said list not summoned, with the reasons why they were not. The sheriff was permitted to amend his return as moved, and the prisoner again excepted. (3) Because one of those named on the venire was not summoned. (4) Because the sheriff, in copying the list of the venire, by mistake, failed to copy the name of one man, who in consequence, was not summoned. The jury was selected before the prisoner had exhausted his peremptory challenges.

1. The first ground of exception was expressly held adversely to the prisoner in State v. Hensley, 94 N.C. 1021. The amendment of the sheriff's return was in the discretion of the court at this term, and removed the second ground of objection, if it had any merit. The other two grounds assigned likewise did not "affect the integrity and fairness of the entire panel," and were properly disallowed. State v. Hensley, supra. The prisoner excepted because the court refused to charge the jury that there was not sufficient evidence to go to them to show a conspiracy between the prisoner and John Llewellen to murder the deceased. A consideration of the evidence sent up justifies such refusal. The prisoner also excepted to the charge of the court, in that the court charged that, "if the jury should find from the evidence that there was no conspiracy between the prisoner and John Llewellen, it would then be their duty to consider whether he was an aider and abetter in the killing of Charles Brockers,--that is, as principal in the second degree,--and in determining that fact they should not be influenced by the fact that John Llewellen had been acquitted of the murder of Brockers; that the acquittal of John Llewellen should have nothing to do with their verdict in this case." Brockers was a deputy marshal, who had arrested John Llewellen on a warrant, and had been killed in attempting to carry him to jail. John Llewellen and his father had been tried and acquitted. The prisoner was charged, not as an accessory before or after the fact, but as a coprincipal. What another jury had done as to Llewellen was inadmissible for or against one charged as a principal. The case of State v. Jones, 101 N.C. 719, 8 S.E. 147, therefore, has no application. A principal in the second degree is not an accessory, but a coprincipal. 1 Bish. Crim. Law, § 604, (4.) Even if the prisoner had been charged as principal in the second degree, he could have been convicted when the principal in the first degree had been acquitted. 1 Whart. Crim. Law, § 222, note 2, and numerous cases there cited; 9 Amer. & Eng. Enc. Law, 574, note 2.

2. The prisoner further excepted because the court charged the jury "that, in order to find the prisoner guilty as a principal in the second degree, the jury must be satisfied from the evidence, beyond a reasonable doubt, that he actually aided and abetted John Llewellen in the killing of Brockers. That if they were satisfied beyond a reasonable doubt, from all the evidence, that the deceased was murdered by John Llewellen; and that, just before the fight begun, the prisoner stood at the northeast corner of the house, with a pistol in his hand; and that John Llewellen came to the door with a pistol in his hand, and the prisoner then said to him, 'You can go to Marshall if you want to go, and, if you don't you need not. By G___, I am here;' and that this was said for the purpose of encouraging John Llewellen to resist a lawful arrest by the deceased; and that, during the fight that ensued, the prisoner had a pistol in his hand, prepared and ready to assist John Llewellen if it should become necessary; and that he stood near the witness Samuel Cox, cocking his pistol backward and forward twice, either for the purpose of preventing the said Cox from assisting Brockers in...