18 S.E. 507 | N.C. | 1893
The defendant was convicted, and appealed. The exceptions, etc., upon which the appeal was based are stated in the opinion of Chief JusticeShepherd. The prisoner was indicted for the murder of one Ellen Smith, and, after his arraignment, moved to quash the indictment, on the ground that one of the grand jurors was a cousin of the deceased and therefore disqualified to participate in the finding of the bill.
In S. v. Gardner,
Two of the petit jurors were challenged and, after examination, the court found that they were impartial, and they were sworn. It appears that their opinions, adverse to the prisoner, were based upon rumors only, and they both stated that, after hearing the testimony, they could render a fair and impartial verdict. The exceptions to the rulings of the court upon the question of indifference, based upon such examination, cannot be sustained. S. v. Ellington,
In the course of the trial certain confessions were offered by the State, and their admission was excepted to because of alleged threats made by the witness on the occasion of the arrest of the prisoner. The witness, Adams, a policeman, testified as follows: "I went to help arrest the prisoner; the sheriff and two others went along; saw prisoner at the window of Russell's house at about 12 o'clock at night; he pulled the curtain back. I said to the prisoner, `Peter, you had just as well give up; you may get one of us, but we will get you.' We went in, and I pointed my pistol at the prisoner; prisoner had three heavy pistols and fifty-two rounds of cartridges in a trunk by the bed. After the prisoner put on his clothes he began to make fun of us for coming after him with little popguns (we had Smith Wesson pistols). He said, `Let me show you some pistols,' and he showed us these three large pistols. He rode behind me on a horse to Winston; he was not frightened, nor was he tried. No threats were made by him, and no promises, and his statements *506 were voluntary." The witness, at another stage of the trial, was examined again upon this subject, but his testimony was substantially the same. The witness then testified to declarations made by the prisoner concerning his flight to Roanoke and New Mexico, and his subsequent return to this State. It is hardly necessary to cite authority in (692) support of the ruling of the Court. The single circumstance of pointing the pistol at the prisoner, in connection with the language of the witness, indicating that it was done only for the purpose of effecting the arrest, very clearly would not have authorized the exclusion of the declarations subsequently made; and especially is this so in view of the conduct of the prisoner, showing that he had no actual fear of violence, and also because of the entire absence of any circumstances whatever that were likely to produce such an apprehension.
It appears that when the officer was on the porch of the house where the prisoner was staying, the owner inquired who it was. It also appears that the prisoner was in the room and heard the remark. The remark was harmless, but, had it been otherwise, having been made in the presence of the prisoner, it was plainly admissible. S. v. Ludwick,
Neither is there any force in the objection to the admission of the statements of the prisoner before the committing magistrate. The testimony upon this point is that "he was duly warned — told that he need not say anything unless he wanted to, and it would not be used against him if he did not testify, and it was dangerous to go on the stand," etc. It is well settled that, in cautioning the prisoner, under such circumstances it is not necessary that the exact language of the statute (The Code, sec. 1146) should be used. A substantial compliance is sufficient, and such was the case in the present instance. S. v. Rogers,
Equally untenable is the objection to the testimony touching the general character of the witness Davis, and the same is true as to the question asked the said witness, whether the prisoner told him where the deceased was at a certain time. The witness gave a negative answer; and, even if the question were objectionable (and we do not see that (693) it is), the prisoner could not have been prejudiced thereby. The State introduced a letter found in the bosom of the dead woman, and introduced Wilson as an expert to prove that the said letter was in the handwriting of the prisoner. Wilson being examined by the court as to his qualifications as an expert, testified as follows: "Was bookkeeper many years. Am secretary and treasurer of the city. It is my duty as such to compare handwritings to see which are genuine and *507 which are not; to examine checks and drafts; have been in the business fifteen years; I have had such experience in the business of inspecting handwritings that I can compare a paper with one whose genuineness is known and tell if the former paper is genuine." His Honor held that the witness had been properly qualified as an expert, and the prisoner excepted. The witness was then handed an affidavit made by the prisoner in this case, the signature to which was admitted to be genuine, and the witness was permitted to compare the same with the letter, and to give his opinion as to whether the letter was in the handwriting of the prisoner, and the prisoner excepted.
Another witness, J. P. Stanton, was also examined, and gave similar testimony. He testified in reference to his competency as an expert as follows: "Have been four or five years register of deeds of the county; had occasion to examine signatures; frequently called on to prove signatures in clerk's office of dead men's names; and used magnifying glass to detect erasures; have had such experience that I can compare a writing with one admitted to be genuine and tell if the latter is genuine." All of the exceptions addressed to the admission of this testimony are so fully discussed in the elaborate opinion of this Court in Tunstall v.Cobb,
The testimony as to Ray's leaving after the homicide was evoked by the prisoner upon cross-examination, and cannot form a ground of exception. It seems, however, to have been immaterial, and in no view could it have prejudiced the prisoner.
After the verdict the prisoner moved for a new trial, on the ground of newly discovered evidence, which was to the effect that on Brewer, a witness for the State, had before the trial expressed himself in very bitter terms against the prisoner, stating in effect that he desired his conviction, etc. The affidavit also states that the prisoner did not know of the hostility of said witness until after the counsel had argued the case. It is well settled that the granting of a new trial upon newly discovered evidence is, in the absence of gross abuse, a matter within the discretion of the court, and that its refusal to do so is not reviewable upon appeal. It is also well established that the court will not exercise such a discretion where the new testimony is merely cumulative or, as in this case, only tends to contradict or discredit the opposing witness. Therefore, even if the ruling of his Honor were the subject of review, we would have but little hesitation in sustaining it. S. v. Starnes, *508
The remaining question to be considered grows out of the affidavit of one Hudson, to the effect that two of the jurors who tried the case had on several occasions before the trial expressed the opinion that the prisoner was guilty, and that the affiant did not inform either the (695) prisoner or his counsel of the fact. It is stated in the motion, but not in the affidavit, that these jurors made a contrary statement on the voire dire. His Honor overruled the motion, but found no facts, and it is settled by repeated decisions that where the facts are not found the affidavits cannot be considered in this Court. In S. v. Godwin,
In Rhinehart v. Potts,
In S. v. Smallwood,
However this may be, we are not, under the rule to which we have referred, and which has ever been so rigidly followed, permitted to act upon the affidavit offered by the prisoner. Until the rule is relaxed, the *510 only remedy to be found in a meritorious case, is in the executive department of the government.
After a patient and careful investigation of the record, we have been unable to discover any error in the rulings of the court, and, in view of the whole testimony, we see no reason for disturbing the verdict.
Affirmed.
Cited: S. v. Fuller,
(698)
