77 N.C. 481 | N.C. | 1877
The facts necessary to an understanding of the point decided in this Court are sufficiently stated by Mr. Justice Faircloth. Verdict of guilty. Judgment. Appeal by defendant. The defendant was indicted for the murder of one Barringer, and was convicted. There were several witnesses examined, who proved that there was a fight taking place between the other parties, and the evidence was conflicting in regard to the conduct of the deceased and the prisoner. His Honor charged the jury that "if they believed the witnesses Plummer, Livengood, and Cully, or either of them, the fact of slaying had been proved," and the prisoner excepted.
The witness Livengood testified as follows: "Prisoner was standing near a fence whittling with his knife; a difficulty arose between Matt Locke and Tom Hyde; deceased passed by the witness going (482) across the log; prisoner passed on below witness, going towards the deceased; in a short time the prisoner leaving deceased, and saw blood running from the deceased, and the prisoner trotting off for about 50 yards, and then he took off his hat and ran with great speed; the deceased had nothing to do with the fight going on; prisoner approached deceased coolly and slowly; . . . did not see prisoner after he passed witness, until he saw him running off as before stated."
The case was argued before us on this exception alone, and we sustain the exception. The homicide, of course, is a material fact to be established by proof, and it is the exclusive province of the jury to say whether the evidence proves the fact or not. Livengood does not say that the prisoner slew the deceased, but only deposes to certain circumstances which might or might not satisfy the jury. His Honor invaded their province by charging the jury that if they believed Livengood, the fact of slaying is proved. This was weighing the evidence and declaring the result as a matter of law to the jury.
"No judge, in giving a charge to the petty jury, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury," etc. Bat. Rev., ch. 17, sec. 237.
We have looked carefully through the whole of his Honor's charge, and find nothing to cure the error above designated.
PER CURIAM. Venire de novo.
Cited: McCanless v. Flinchum,
(483)
