18 S.E. 715 | N.C. | 1893
SHEPHERD, C. J., not being present, did not participate in the decision of this case.
The prisoner was indicted for murder and was convicted of murder in the second degree. There was a special venire of one hundred and fifty men ordered and drawn from the box by the court. The Code, sec. 1739; S. v.Brogden,
1. Because one of the men named on the special venire had removed from the county, and another was dead at the time the jury list had been revised by the county commissioners.
2. Because the sheriff had indorsed on the writ and list of special venire: "Received 25 October, 1893; executed 30 October, 1893, by summoning a jury of one hundred and fifty men." The solicitor moved that the sheriff be allowed to amend his return, so as to show those of the list furnished him by the clerk who were actually summoned, and those of said list not summoned, with the reasons why they were not. The sheriff was permitted to amend his return, as moved, and the prisoner again excepted.
3. Because one of those named on the venire was not (718) summoned. *525
4. Because the sheriff in copying the list of the venire by mistake failed to copy the name of one man, who, in consequence, was not summoned. The jury was selected before the prisoner had exhausted his peremptory challenges.
The first ground of exception was expressly held adversely to the prisoner in S. v. Hensley,
The prisoner excepted because the court refused to charge the jury that there was not sufficient evidence to go to them to show a conspiracy between the prisoner and John Llewellen to murder the deceased. A consideration of the evidence sent up justifies such refusal.
The prisoner also excepted to the charge of the court:
1. In that the court charged, "if the jury should find from the evidence that there was no conspiracy between the prisoner and John Llewellen, it would then be their duty to consider whether he was an aider and abettor in the killing of Charles Brockers, that it, as principal in the second degree, and in determining that fact they should not be influenced by the fact that John Llewellen had been acquitted of the murder of Brockers, that the acquittal of John Llewellen should have nothing to do with their verdict in this case." Brockers was a deputy marshal, who had arrested John Llewellen on a warrant, and had been killed in attempting to carry him to jail. John Llewellen and his father had been tried and acquitted. The prisoner was charged, not as an accessory before or after the fact, but as a coprincipal. What another jury had done as to Llewellen was inadmissible for or against one charged as a principal. The case of S. v. Jones,
2. The prisoner further excepted because the court charged the jury "that, in order to find the prisoner guilty as a principal in the second degree, the jury must be satisfied from the evidence, beyond a reasonable doubt, that he actually aided and abetted John Llewellen in the killing of Brockers, that if they were satisfied beyond a reasonable doubt from all the evidence that the deceased was murdered by John Llewellen, and that just before the fight began, the prisoner stood at the northeast corner of the house with a pistol in his hand, and that John Llewellen came to *526
the door with a pistol in his hand, and the prisoner then said to him, `You can go to Marshall, if you want to go, and if you don't you need not; by G — d, I am here,' and that this was said for the purpose of encouraging John Llewellen to resist a lawful arrest by the deceased, and that during the fight that ensued the prisoner had a pistol in his hand prepared and ready to assist John Llewellen if it should become necessary, and that he stood near the witness Samuel Cox, cocking his pistol backwards and forwards twice, either for the purpose of preventing the said Cox from assisting Brockers in the arrest, or for the purpose of showing John Llewellen that he was prepared to assist him, or encouraging him in resisting arrest, and that by reason of such action and words and behavior the said John Llewellen was encouraged and assured by the prisoner, that then, this would be an aiding and abetting by the prisoner, and he would be guilty, as a principal, in the second degree, whether he fired the fatal shot or not, and could be (720) convicted of murder in the second degree." Wallis's case, 1 Salk., 334, is an authority exactly in point. He was tried at Old Bailey in 1703. The indictment was against A for murder, and against Wallis and others as persons present, aiding and abetting A therein. A was first tried and acquitted. When Wallis was afterwards put on trial and convicted, Holt, C. J., determined that, though the indictment be against the prisoner for aiding and assisting and abetting A, who was acquitted, yet the indictment and trial of that prisoner (Wallis) was well enough, for all are principals, and it is not material who actually did the murder." Brown v. State,
The solicitor asked the witness Cox, "What did Brockers say to you immediately after the fight about his having a wound?" The prisoner objected on the ground that, not being a part of the res gestae and not having been made in the presence of the prisoner, it was incompetent. The court ruled, after preliminary inquiry, that what Brockers then said to the witness about his feelings or the nature of the wound he had received, was competent, but anything that he said about the fight was incompetent. The witness then testified, that "not over ten minutes after the fight, and about one hundred or one hundred and fifty yards from the place of the fight, as soon as he and Brockers had gotten on their horses Brockers asked him if he was not shot. Witness told him No, and asked Brockers if he was. He said Yes, he thought he was killed. Witness then asked him where he was shot, and he said through the leg, the arm and the thigh and the body, and that he believed he could feel *527 the blood running inside of him." The prisoner excepted. It was also in evidence that Brockers died within forty-eight hours from the wounds received on that occasion.
The court correctly held that the conversation was not a part (721) of the res gestae. Cockburn, C. J., in Rex v. Beddingfield, 14 C. C., 341; Roscoe's Cr. Ev., 26, 29, and cases there cited; S. v. Frazer, 1 Hous., 176; James v. State,
No error.
Cited: S. v. Stanton,
(722)