65 N.C. 294 | N.C. | 1871
There was a verdict of guilty, and from the judgment thereon (295) the prisoner appealed to the Supreme Court. In the view taken of the case by the Court, the facts are sufficiently stated in their opinion. The question is, whether the prisoner was entitled to the benefit of the State Amnesty Act, passed December, 1866.
The case sent up does not disclose the inducement to the homicide, nor the circumstances connected with it, except that as described in the indictment, it was by a pistol shot.
The case was made to turn upon the point, whether the prisoner was in the United States service when he committed the homicide. This was a question of fact for the jury to try, if there was any evidence tending to show that he was.
When the prisoner's counsel asked his Honor to charge the jury, that if they believed that the prisoner was in the United States service, when he committed the homicide, there was a presumption that it was done under orders, and he was entitled to amnesty; his Honor declined so to charge, saying that it did not fit this case, for that the prisoner had failed to show that he was in the service. It will be seen, therefore, *225 that his Honor decided this question of fact, which he ought to have left to the jury, if there was any evidence tending to prove it.
The evidence was, that the prisoner had been authorized to recruit for the 3rd North Carolina federal regiment, and then again for the 2nd regiment, and then again as late as March, 1865, he was authorized to recruit colored troops for artillery service in the United States. And he was actively engaged in recruiting as late as 22nd July, 1865, and there was no evidence that his authority has ever been revoked. It is true that there was evidence that the 3rd regiment was disbanded 17th August, 1865, and the 2nd regiment a few days before, (296) but there was no evidence that the prisoner was present, or that he was a member thereof.
It would seem, that his recruiting authority did not connect him with any particular command. But suppose it did, suppose it had been shown that he was of the third regiment, and that his authority ceased when the regiment was disbanded 17th August, 1865, still it was a question for the jury, whether the homicide was before or after 17th August. The witness speaking of the transaction five years after it occurred, said it was "about the last of August," was it for his Honor to say, whether that was before or after 17th August? Suppose the witness's recollection to be reliable, what did, "about the last of August" mean? Did it mean the last day, or the last part, or half? The 17th is of the last half; and "about" the last half, might have left it, even before the 15th. This was clearly a question for the jury. And because it was not left to the jury, the prisoner is entitled to a venire de novo.
We think it proper to say further, that there was upon the trial much too narrow a view taken of the Amnesty Act.
We take it that the homicide grew out of the war — else why was amnesty considered in connection with it? for in State v. Cook,
There is error. Let this be certified.
Per curiam.
Venire de novo.
Cited: S. v. Henderson,
(298)