93 N.C. 628 | N.C. | 1885
The prisoner is charged with having committed a rape upon the body of Lizzie A. Edins, in an indictment containing two counts, the one being silent as to her age, the other alleging it to be under ten years. Upon the plea of not guilty, the prisoner was put on trial before a jury at Spring Term, 1885, of Onslow Superior Court, and convicted of the offense. Thereupon, sentence of death being pronounced, the prisoner appeals to this Court. The record discloses two exceptions to the rulings of the court, which we are required to review and determine.
1. The prisoner's counsel proposed to prove what was said by the prisoner to the officer, who made the arrest, in reference to the imputed crime. There had been no charge made against him by the arresting officer, nor had the State shown any communication between them, or between the prisoner and any one else on the subject. The evidence, on objection from the solicitor, was disallowed as incompetent, and the prisoner excepted. Similar evidence was afterwards offered, (630) and upon the same grounds rejected.
It is settled by repeated adjudications that declarations of a prisoner, made after the criminal act has been committed, in excuse or explanation, at his own instance, will not be received; and they are competent only when they accompany and constitute part of the res gestae. *530
"As evidence," remarks Ruffin, C. J., "what a party says is received against him, not for him. It does not prove the truth to be as related; and the truth is the subject of inquiry before the jury. It does not matter that the account is not a recent one, but was given early after the transaction. Unless the declarations form a part of the transaction they are not receivable in evidence." S. v. Tilly,
There are no repugnant rulings to be found in S. v. Patterson,
But it is not shown what the declarations proposed to be proved were, so that it cannot be seen that they were at all relevant to the issue and that there is error in the rejection. To sustain the exception this should be made to appear. S. v. Dula,
2. The prisoner set up as defense that he was under fourteen years of age at the time of the alleged criminal act, and testimony was offered upon this issue, the mother of the prisoner rendering it somewhat uncertain whether he was of that age, and a number of witnesses (631) for the State placing it at about seventeen years.
In instructing the jury upon this part of the defense the court used this language: "It is for you to say whether he is under fourteen years of age or not, being, as you see him before you, grown to the statute of manhood." Upon a suggestion from the solicitor that the remark might be misconstrued as intimating an opinion as to the prisoner's age, the court, not conceding that what was said was susceptible of such a construction, recalled the jury, as they were retiring, and said to them: "What the court said to them in reference to the size and appearance of the prisoner was not to be taken by them as indicating the opinion of the court as to the prisoner's age, but that they had a right to consider his size and appearance to aid them in coming to a conclusion as to his age."
To this charge and action of the court exception was taken by the prisoner.
If the language first employed was obnoxious as the intimation of an opinion upon a disputed fact, and we do not admit that it was, the *531 objection is removed by the subsequent explanatory statement made before the jury entered upon their deliberations. This was a prudent and proper course on the part of the presiding judge.
"It is undoubtedly proper and in the power of the court," observesRuffin, C. J., in McAllister v. McAllister,
But if the patent fact of the prisoner's full growth was before the jury and beyond dispute, how could there be error in telling the jury what they saw themselves.
In S. v. Davis,
(633) In S. v. Arnold,
"The objection assumes as a fact that the prisoner appeared to be under fourteen years of age. As there was no proof on this point, it could only be judged of by inspection, and, so far as that goes, it must be taken to have been decided against the prisoner, both by the court and the jury. As the subject of direct proof, the onus was certainly on the prisoner, as the reputed age of every one is peculiarly within his own knowledge, and also the persons by whom it can be directly proved."
There is no error in the record, and the exceptions were correctly overruled. Let this be certified to the end that judgment be entered upon the verdict according to law.
No error. Affirmed.
Cited: S. v. Ward,
*1