19 S.E. 797 | N.C. | 1894
The exception to the ruling of the court, permitting the State to challenge a juror who had been tendered to the prisoner, appears in the opinion.
The prisoner presented affidavits, charging improper conduct on the part of the jury and of the officer who had them in charge, and showing, or tending to show, bias on the part of T.C. Tew, one of the jurors, and from said affidavits the court found the following (887) facts:
That eleven of the jurors were shaved by one of their number, in their room in Saturday evening, the third day of the trial, and the other (a colored man) was carried to a barber shop in town, about 200 yards from the room in which the remaining eleven jurors were. The officer, locking the door of said room, put the key in his pocket and accompanied the colored juror to the barber shop and back, and when he returned, found everything as he left it. They were supplied with two quarts of whiskey on Saturday afternoon. One quart was first bought for Sunday, the jurors themselves furnishing the money and the officer buying it for them. Every juror drank out of it; each juror took one drink, consuming one quart. One quart was first bought, and some time after, same afternoon, the other quart. The jurors played cards, from time to time, pending the trial, the cards being furnished by the proprietor of the boarding-house. The friends of the deceased had been boarding at the house to which the jury were carried, but they did not remain there after the jury were carried there; that on another occasion the officer took one of the jurors, who was troubled with his bowels, to a back lot to obey a call of nature, and at the request of the juror, who was complaining of pain, carried him into a saloon, where the juror and officer each took a drink with him, the remaining eleven being left in the room, and the same locked up; that on another occasion one of the jurors requested the officer to take him to a livery stable, not far off, in order to remove his horse to another stable, and the officer did so, and also allowed the colored juror to go with them, leaving the other ten jurors locked up in the room until they returned; that the officer allowed the jurors to use and read the Wilmington Messenger, from day to day, during the trial, which contained what purported (888) to be a full report of the evidence and abstracts of the argument of counsel, instructing them not to read the account of the"Fuller" trial; that on the night before the verdict was rendered, the *552 jury, without the knowledge or consent of the prisoner or court, were taken by the officer to a prayer meeting in the Baptist Church; that they sat together, the officer sitting with them, and all in his immediate view, and that there was nothing improper in their conduct while at church, going to or from.
The above facts are found by the court upon the affidavits filed by the prisoner and the affidavit of E. M. Waddell, the officer of the jury, which he filed in answer to the rule served upon him for contempt, in violation of his duty as such officer, and which he asked might be read in response to the affidavits as to his conduct.
It was agreed between counsel on both sides that the officer might take the jury to church on Sunday, which he did. This is the only agreement made by counsel as to the jury. HENRY R. BRYAN, Judge Presiding.
The officer, answering a rule, was fined by the court $150 and sentenced to jail for thirty days. Upon the sworn testimony of his physician that imprisonment would imperil his life, he being an old and feeble man, and further testimony of his not having over $50 in property, the fine was stricken out and the judgment suspended.
HENRY R. BRYAN, Judge, etc.
Facts found by the judge, and his ruling thereon, entered of record:
(889) One of the jurors, J. C. Tew, having been asked the question whether he had formed and expressed the opinion that the prisoner at the bar was guilty, answered in the negative, and was thereupon accepted.
The prisoner, after the verdict, offered the affidavits of S.C. Godwin and J. R. West, tending to show that the juror had expressed an opinion, which affidavits were as follows:
S.C. Godwin, being duly sworn, says: That on Monday, 22 January, 1894, late in the afternoon, affiant had a conversation with J. C. Tew and J. R. West relative to the trial of the Fuller case, in which conversation affiant asked said Tew (who was one of the jurors who tried the case) and West, "What are they doing in the Fuller Case?" to which West said, "They are doing nothing." Affiant then asked them if they were summoned on thevenire, or if the venire was summoned, to which West replied, "No, and they had better not summon us unless they want him (Fuller) hung — had they, John Curt?" (addressing Tew). J. C. Tew then said, "You bet not."
J. R. West, being duly sworn, says: That on Monday of the first week of this term of the court he was at the house of his uncle, S.C. *553 Godwin, in Flea Hill Township, Cumberland County, in company with the said J. C. Tew, one of the jurors in the above entitled case; that the subject of conversation was the Fuller trial. S.C. Godwin asked if they had summoned the venire. This affiant said, "No, they had done nothing with him yet, and they need not summon me and Tew, because we would hang him — would not we, Tew?" Whereupon, the said Tew said, "You bet we would," or words to that effect.
Upon which foregoing affidavits prisoner asked the court to find that the juror, Tew, was not an indifferent juror at the time he was accepted by the defendant. The court declined to so find, being of the opinion that affidavits were not sufficiently strong. (890)
H. R. BRYAN, Judge, etc.
The single exception to the charge, which is discussed in the opinion, is set forth therein in full. From the judgment pronounced upon a verdict of guilty the prisoner appealed. After all of his peremptory challenges had been exhausted, the juror, Hawley, was passed by the State and tendered to and accepted by the prisoner. As the clerk was about to swear him, he asked to be excused, upon the ground that he was an intimate and lifelong friend to the prisoner and connected with him by marriage. Further investigation developed the fact that no relationship, either by consanguinity or affinity, existed between the prisoner and the juror, but that a first cousin of the prisoner had married the juror's second cousin. After correctly ruling that no sufficient cause of challenge had been shown, and after it had been made to appear that the juror had previously asked the counsel for the prosecution to excuse him, but without assigning any reason for making the request, the court overruled the objection of the prisoner and permitted the State to challenge the juror peremptorily.
The statute (The Code, sec. 1200) provides that "In all capital cases the prosecuting officer on behalf of the State shall have the right of challenging peremptorily four jurors, provided said challenge is made before the juror is tendered to the prisoner, and if he will challenge more than four jurors he shall assign for his challenge a (891) cause certain." The right of peremptory challenge is given to *554
the prosecuting officer, coupled with the express condition that it is to be exercised before the particular juror is tendered to the prisoner, or not at all. The statute imposes no such restriction as to challenges for cause. S. v. Vestal,
After the rendition of the verdict, affidavits were filed, tending to show misconduct on the part of the jury actually impaneled, and of the officer who had charge of them. The judge found the facts bearing upon this subject, and his denial of the motion on that ground is not reviewable here. S. v. Best,
It is immaterial whether the court started out to find the facts at the request of the prisoner's counsel or on its own motion. It would have been a work of supererogation to request the judge to do what he was already doing voluntarily. But the principle announced in the recent case of S. v. DeGraff,
In defining murder in the first degree the court said: "The killing being admitted, and nothing else appearing or proved, the court charges you that no presumption is raised that it is murder in the first degree, and unless the circumstances show beyond a reasonable doubt that there was a deliberate, premeditated, preconceived design to take life, it is murder in the second degree. The act should not only be wilful, (898) premeditated, malicious, but it must have been committed with the formed intention to take life — a fixed design that the act shall result in the death of the party assaulted, a fully formed, conscious design to kill, and with a weapon prepared for the purpose. Premeditation may be inferred or presumed from the use of a deadly weapon in the possession of the party using it, unless the contrary be made to appear." The prisoner could not justly complain of the proposition embodied in all that precedes the last sentence of the foregoing extract from the charge. The mere fact of killing, when admitted, raised no presumption that it was murder in the first degree, and it was the duty of the jury, unless they were satisfied beyond a reasonable doubt that there was a deliberate, premeditated and preconceived design on the part of the prisoner to take life, and that the act of killing was committed in pursuance of such fixed design, to find the prisoner guilty of no higher offense than murder in the second degree. When the jury were told that they were at liberty to presume or to draw the inference from the mere fact that a deadly weapon was used, leaving out of view any other evidence offered to show that the prisoner was in the very act of killing, pursuing a deliberate and preconceived purpose, a very grave question was raised, which it is the duty of this Court to settle in this, the very first case involving a construction of the late act defining what constitutes murder in the first and second degrees. Unquestionable, now, just *559
as before the enactment of the statute, the use of a weapon likely to produce death raises a presumption of malice, and, therefore, the jury may infer, when there is evidence that the killing was done with such a weapon, that the person charged is guilty of murder in the second degree. S. v. Townsend,
In the case of Romans v. State,
Where the presiding judge, in defining the two degrees of murder, inadvertently instructs the jury that the fact of killing with a deadly weapon, when admitted, raises the presumption or justifies the inference that there was premeditation instead of malice, it is necessarily an incurable error. No subsequent proposition inconsistent with that can be held to have removed the erroneous impression fastened on the minds *561 of the jury in the beginning; but, while the court reiterates in many forms the instruction that it is incumbent on the State, in order to a conviction of murder in the first degree, to show beyond a reasonable doubt that there was both premeditation and deliberation (902) there is in fact nothing in the charge clearly inconsistent with the idea that the jury were still left to draw the inference that there was premeditation from the bare fact that a pistol was used by the prisoner to inflict the mortal wound.
The passage of the act of 1893 marks an era in the judicial history of the State. As far as we can ascertain, every other State had previously divided the common-law kind of murder into two classes. The theory upon which this change has been made is that the law will always be executed more faithfully when it is in accord with an enlightened idea of justice. Public sentiment has revolted at the thought of placing on a level in the courts one who is provoked by insulting words (not deemed by the common law as any provocation whatever) to kill another with a deadly weapon, with him who waylays and shoots another in order to rob him of his money, or poisons him to gratify an old grudge. So long as artificial proof of malice is allowed to raise the presumption of murder, this new law will fail to accomplish the object for which it was framed. Elsewhere the courts have generally followed the lead of Pennsylvania, and we, too, have adopted the interpretation given by her courts to the law which our Legislature has borrowed from her statutes. It is not the severity of laws, but the certainty of their execution, that accomplishes the end that should be always in view in enforcing them. Heretofore, public opinion has approved and often applauded the conduct of juries in disregarding the instructions of judges as to the technical weight to be given to the use of a deadly weapon. The consequence has been that, a lax administration of the law being tolerated in such cases, other juries have constituted themselves judges of the law as well as of the facts, when proof has shown a more heinous offense. The experience of a few years will probably demonstrate here as (903) elsewhere that fewer criminals will escape under a law which is in accord with the public sense of justice than under one which makes no discrimination between offenses differing widely in the degree of moral turpitude exhibited. For the reasons pointed out, the prisoner is entitled to a
New trial.