State v. . Barnhill

Nov 14, 1923

Versions:

ClaeksoN, J.

The witness Chancey was asked, “Right when the man was hit, if anybody had come there and said they hit him, wouldn’t that have made an impression on your mind?” The State objected to this question; the court sustained the objection and defendant excepted, and this was the first assignment of error. We think the defendant’s exception cannot be sustained; if the court was in error the defendant waived it by the question immediately being put in another form and *450 answered without objection: “Do you think your mind was in such a condition that that would not have made an impression on you? A. I guess not. I have told you all I know about it.”

The second exception to the charge, on reasonable doubt, was not insisted upon in the brief and, as a rule, will not be considered on appeal. Rules of Practice in the Supreme Court, Rule 27, “Briefs,” 185 N. C., 798.

The court made no error in defining “reasonable doubt.” This has been done in a recent case, S. v. Schoolfield, 184 N. C., 723, where Btacy, c71, said: “A reasonable doubt is not a vain, imaginary, or fanciful doubt, but it is a sane, rational doubt. When it is said that the jury must be satisfied of the defendant’s guilt beyond a reasonable doubt, it is meant that they must be ‘fully satisfied’ (S. v. Sears, 61 N. C., 146), or ‘entirely convinced’ (S. v. Parker, 61 N. C., 473), or ‘satisfied to a moral certainty’ (S. v. Wilcox, 132 N. C., 1137) of the truth of the charge, S. v. Charles, 161 N. C., 287. If after considering, comparing, and weighing all the evidence the minds of the jurors are left in such condition that they cannot -say they have an abiding faith, to a moral certainty, in the defendant’s guilt, then they have a reasonable doubt; otherwise not. Commonwealth v. Webster, 5 Cushing (Mass.), 295; 52 Am. Dec., 730; 12 Cyc., 625; 16 C. J., 988; 4 Words and Phrases, 155.”

Exceptions three and four were to recitals of the court below in regard to the contentions. If the recitals of the court were incorrect as to the facts of the case, it was the duty of the defendant to call the court’s attention lb it, so that the ■ correction could- be made then and there. If this was not done at the time, the defendant cannot complain and wait and except when the case is made up on appeal. The rule is stated in S. v. Baldwin, 184 N. C., 791, as follows: “We have so often said that the statement of contentions must, if deemed objectionable, be excepted to promptly, or in due and proper time, so that, if erroneously stated, they may be corrected by the court. If this is not done, any objection in that respect will be considered as waived. We refer to a few of the most recent decisions upon this question: S. v. Kincaid, 183 N. C., 709; S. v. Montgomery, 183 N. C., 747; S. v. Winder, 183 N. C., 777; S. v. Sheffield, 183 N. C., 783.” See S. v. Williams, 185 N. C., 666.

Exceptions five and six are to the rule, as stated by the court, to the scrutiny to be given the testimony of the defendant and his relatives. It will be noted from the evidence to establish an alibi that there was only about fifteen minutes difference as to the time the prosecutor, Henry, was struck in front of Hayes Tate’s barber shop and the time that the defendant’s relatives testified that, he was at Bland. Wallace’s, *451 bis father-in-law's, home, some two miles from Tate’s shop. To corroborate the defendant was his wife and relatives, father and mother-in-law, Bland Wallace and Janie Wallace, and his brother-in-law, Leslie Woodcock. The charge of the court was, in substance, the rule laid down by this Court. The court below laid down the crucial rule, “If you find that the evidence is entitled to be believed, you have a right to accept it and give it the same weight you would that of any disinterested witnessThe use of the word “duty” would not be amiss, but the nonuse is not error. The above rule has been frequently upheld by this Court.

In S. v. Williams, 185 N. C., 666, the following was approved: “Exception 33: In this exception defendants complain for that the court did not go far enough and sufficiently qualify the charge given. This is exactly what the court did do, for, after telling the jury that they should receive the testimony of the defendants and their relatives with caution and scrutiny, the judge used this language: 'If, after such scrutiny, you are satisfied they are telling the truth, it will then be your duty to give it as much credit as you give the testimony of a disinterested witness.’ ”

In S. v. Lovelace, 178 N. C., 769, it is said: “The charge requiring the jury to consider the interest of the defendant and other witnesses, but if satisfied they had told the truth they could give their evidence as much weight as the evidence of other witnesses, is in accordance with our precedents and not prejudicial to the prisoner.”

In S. v. Lance, 166 N. C., 413, it is said: “As to the instructions as to the testimony of the prisoner himself and of his relatives, testifying in his behalf, cannot be sustained, as the charge was in accordance with S. v. Fogleman, 164 N. C., 461; S. v. Byers, 100 N. C., 512, and cases cited. The court told the jury that, notwithstanding the personal interest of the defendant and of his relatives, the jury could consider their testimony, and if the jury 'believed them to be credible witnesses, they should give to their testimony the same weight as that of other witnesses.’ ” See S. v. Boon, 82 N. C., 637; S. v. Holloway, 117 N. C., 730; S. v. Collins, 118 N. C., 1204; S. v. Lee, 121 N. C., 546; S. v. Apple, 121 N. C., 585; S. v. McDowell, 129 N. C., 532; S. v. Graham, 133 N. C., 652.

The charge as a whole, as appears from the record, was fair and impartial.

After a careful review of the record, and argument and briefs of the defendant’s counsel, we can find

No error.