62 S.E. 638 | N.C. | 1908
At March Term, 1908, of CUMBERLAND, a bill of indictment, charging defendant with burglary in the second degree, was found by the grand jury. At said term, defendant, through his counsel, came into court and entered his plea of "not guilty." At the same term, the brother of defendant filed an affidavit upon which he based a motion for a continuance of the case on account of the absence of certain witnesses named, by whom he expected to show that defendant is of unsound mind, and has been so for one or two years. The motion was continued.
At May Term, 1908, Judge Long presiding, defendant, through his counsel, tendered a plea of insanity at that time, and at the time (455) of the alleged commission of the offense. He also moved to strike out the plea of not guilty entered at the last term, stating that he did not intend to enter such plea, and did not recollect having done so. The motion was continued. At August Special Term, 1908, the motions were renewed, and counsel also moved to amend the record by striking out the plea of "not guilty." Motion refused. The defendant excepted. Defendant was put upon his trial upon his plea of not guilty. Verdict of guilty. Defendant moved in arrest of judgment upon the ground that he was then insane. Motion overruled. Defendant excepts. Judgment and appeal. *333
After stating the case: The first assignment of error is directed to his Honor's refusal to permit defendant to withdraw his plea of "not guilty," or to amend the record by striking out said plea and submitting an issue directed to the question of his insanity at the time of the trial. His Honor refused this motion and, upon the trial, heard evidence in regard to defendant's insanity, both at the time of the trial and the time the alleged crime was committed. No ground was laid by way of affidavit or otherwise at the time the case was heard by Peebles, J., to show that defendant was insane at the time the plea was entered, March Term, 1908, or at the time of the trial. It was in the sound discretion of the judge to refuse to strike out the plea of "not guilty," entered at March Term. We see no ground upon which his Honor's action, in that respect, can be disturbed. Whether, at the time defendant was put upon his trial, the court should have suspended proceedings and empaneled a jury to ascertain whether he was then insane, is a matter resting in the sound discretion of the court. In S. v.Haywood,
The court permitted witnesses, who had seen defendant and had more or less opportunity to form an opinion as to his mental condition, to express such opinion. This is in accordance with repeated rulings of this court and may now be regarded as settled law. The value of the opinion is dependent upon the opportunity of the witness to form it. Clary v. Clary,
Defendant made a number of requests for special instructions upon the question of insanity, burden of proof, etc. We have examined his Honor's charge and find that, so far as defendant was entitled, they were given. We do not find any error in the instructions given. His Honor was requested to put his charge in writing, which he did. The case on appeal states: "Aside from the written charge, he paused several times and commented on or explained certain features of the written charge, to which defendant excepts. After he had read his charge he stated, orally, the contention of the parties, and gave oral instructions as to the law bearing on certain features of the contentions of the parties, to which defendant excepts." It is not suggested that any instructions given orally were erroneous or prejudicial to defendant. We do not think defendant entitled to a new trial because of the action of the judge in this respect. While it is true, as held in Jenkins v. R.R.,
No error.
Cited: S. v. Banner, post, 524. *335