State v. Winchester

• Decision Date: 12 December 1893
• Citation: 18 S.E. 657,113 N.C. 641
• Parties: STATE v. WINCHESTER.
• Court: North Carolina Supreme Court

18 S.E. 657

113 N.C. 641

STATE v. WINCHESTER.

Supreme Court of North Carolina

December 12, 1893

Appeal from superior court, Union county; Armfield, Judge.

Error cannot be predicated on the trying together of pleas of former conviction and not guilty, where no exception was taken to such course.

W. R. Winchester was convicted of crime, and appeals. Reversed.

R. B. Redwine, for appellant.

The Attorney General and Armistead Jones, for the State.

CLARK, J.

The case on appeal states: "At the close of the testimony his honor instructed the jury that upon the testimony of the justice of the peace, Irby, there had been no former conviction, and upon the testimony of the defendant he was guilty, and directed a verdict to be rendered accordingly." If the evidence justified it, (as to which we need express no opinion,) it would have been proper for the court to have instructed the jury that if they believed the evidence of Irby, witness for defendant, they should find that there was no former conviction; and if they believed the defendant's own testimony he was guilty of the offense charged. State v. Vines, 93 N.C. 493, 498. But in directing a verdict the judge exceeded his powers in a criminal action. The jury must pass upon the credibility of the testimony offered. The subject has been so recently discussed in State v. Riley, 18 S.E. 168, (at this term,) that we need not repeat what is there said. Regularly, the two pleas of former conviction and not guilty should be tried separately, since the plea of former conviction "implies an admission of the criminal act, and is inconsistent with an absolute denial." State v. Pollard, 83 N.C. 597; State v. Respass, 85 N.C. 534. But the practice of trying them together has become not unusual, and is often convenient. There being no exception on that ground, this court must assume that this course was pursued with the assent of the defendant. But in directing a verdict there was error.