52 N.C. 305 | N.C. | 1859
The prisoner was found guilty, and appealed upon exceptions taken at the trial. The points made by the exceptions are so clearly stated in the opinion of this Court that it is deemed entirely unnecessary to state the case at large. In the bill of exceptions filed by the counsel for the prisoner it is alleged that the court erred, first, in the reception of improper testimony, and secondly, in giving an erroneous instruction to the jury.
With regard to the first alleged error, the circumstances are as follows: After the solicitor for the State had introduced testimony to establish the guilt of the prisoner, his counsel called one of his fellow-servants, named Harry, who gave evidence tending to criminate another man and to exculpate him. On cross-examination this witness made some statements which, together with what he had stated in his examination in chief, induced the solicitor to say that he should contend that the witness was an accomplice with the prisoner in the (306) commission of the offense. The counsel for the prisoner then called his master, who testified that the witness Harry and the prisoner had shortly before had a fight, and were not on friendly terms. The solicitor then called a witness to prove that Harry and the prisoner were on friendly terms, and to show this he was permitted by the court, after objection by the prisoner's counsel, to state that he saw Harry and prisoner conversing together the next morning after the transaction, and that he heard the sound of the conversation sufficiently to know that *237 it was apparently friendly, but he did not hear it with sufficient distinctness to understand its import. The witness Harry had not been previously asked whether or not he was on friendly relations with the prisoner.
Under the circumstances, and for the sole purpose for which the testimony was offered, we think it was clearly competent. It was not offered to discredit the witness Harry by proving that he had made contradictory statements before the trial, in which case it would have been necessary to have asked him what is called the preliminary question. S. v.Patterson,
The objection to the charge of the court applies to that part of it only which relates to the subject of a rational doubt. As to that, his Honor said to the jury, "That the humanity of the law was such that if they had a rational doubt upon either of those points" (to wit, the unlawful assault upon the prosecutrix, and the identity of the prisoner with the perpetrator), "they were required to throw (307) those doubts into the scale of the prisoner, and to acquit; that a rational doubt, however, was not a possible doubt, for that might exist in all cases. To exclude this rational doubt, the evidence should be such as men of fair ordinary capacity would act upon in matters of high importance to themselves. If the evidence here did not produce this degree of belief in their minds, then they ought to acquit the defendant; if it did produce that degree of belief, it authorized a conviction."
It is manifest that to the first part of this charge no just exception can be taken. It is supported by all the elementary writers on the subject and has received the sanction of this Court. S. v. Rash,
PER CURIAM. Venire de novo.
Cited: S. v. Brown,