State v. Beal

Stacy, C. J.,

after stating the case: The one overshadowing circumstance, appearing on the record, which gives decided color and tone to the State’s case, is that, when the shooting was over and the smoke of the guns had cleared away, it was discovered that three of the officers, and Roach who came with them, had been shot, one slightly hurt, two seriously injured, and the chief of police mortally wounded; while the defendants, with the -exception of Joseph Harrison, were unharmed.

The case in brief, from the State’s viewpoint, is simply this: Ader-holt, Gilbert and Roach were shot down, being hit in the back, at least Aderholt was, while going with the guard under arrest from the front yard of the union premises to the city car. Ferguson, who was standing a short distance in front of them- and near the automobile, was also shot. The fact that the defendant Harrison was shot down at the same time and found lying with the officers would seem to indicate that he, and not George Carter who sustained no injuries, was the guard with the officers in the line of-fire; leastwise the evidence clearly permits the inference, if it does not compel the conclusion.

Under these circumstances, the prosecution evidently contended with convincing logic that to accept the suggestion of the defendants that the injured officers were the victims of their own guns would be to reject all the natural evidence in the case and to substitute theory for fact. At any rate, the inculpatory circumstances, appearing on the record, are quite sufficient to carry the case to the jury as against each and all of the defendants. S. v. Allen, 197 N. C., 684, 150 S. E., 337.

The practice is now so firmly established as to admit of no questioning that, on a motion to nonsuit, the evidence is to be considered in its most favorable light for the prosecution. S. v. Rountree, 181 N. C., 535, 106 S. E., 669. And further, the general rule is, that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. S. v. Vinson, 63 N. C., 335. But if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. S. v. McLeod, 198 N. C., 649; S. v. Blackwelder, 182 N. C., 899, 109 S. E., 644.

Indeed, as to the defendant Beal, his immediate departure from the community was a circumstance worthy of consideration by the jury, especially in view of the fact that he was regarded as the guiding genius of the strike, and, as the State contends, had counseled violence. S. v. Mull, 196 N. C., 351, 145 S. E., 677; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Stewart, 189 N. C., 340, at p. 347, 127 S. E., 260; S. v. Malonee, 154 N. C., 200, 69 S. E., 786. And while the absence .of the defendant Harrison from the witness stand, as a matter of law, created no presumption against him, and was not a proper subject for comment by counsel in arguing the ease .before the jury, nevertheless his failure to testify, of necessity, left the jury to infer the facts without the benefit of any statement from him. S. v. Tucker, 190 N. C., 708, 130 S. E., 720; S. v. Bynum, 175 N. C., 777, 95 S. E., 101.

That the defendants had conspired and unlawfully agreed among themselves to resist the officers to the death, and to shoot and shoot to kill, in case their plans were interrupted or their purposes frustrated, as alleged and contended by the State, is a permissible inference from all tbe facts in the case. The evidence tends to show that instructions to this effect were given by Beal and executed by the defendants. S. v. Wrenn, 198 N. C., 260, 151 S. E., 261.

Thus the State made out a prima facie case of conspiracy against the defendants, rendering the acts and declarations of each, done or uttered in furtherance of the common design, admissible in evidence against all, and the demurrers to the evidence were properly overruled. S. v. Ritter, ante, 116, S. c., 197 N. C., 113, 147 S. E., 733. “Every one who enters into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others, in furtherance of such common design.” S. v. Jackson, 82 N. C., 565.

Moreover, it is a settled principle of law, apparently applicable to the facts of the instant case, that where a number of persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. S. v. Hart, 186 N. C., 582, 120 S. E., 345; S. v. Jarrell, 141 N. C., 722, 53 S. E., 127.

With respect to the demurrer interposed by the defendants to the bill of particulars filed by the solicitor, it is perhaps sufficient to say that, in this jurisdiction, a bill of particulars is not regarded as a part of the indictment. It may be amended at any time, with permission of the court, on such terms or under such conditions as are just, and is not subject to demurrer. S. v. Wadford, 194 N. C., 336, 139 S. E., 608. The office of a bill of particulars is to advise the court, and more particularly the accused, of the specific occurrences intended to be investigated on the trial, and to regulate the course of the evidence by limiting it to the matters and things stated therein. C. S., 4613; McDonald v. People, 126 Ill., 150; 31 C. J., 752.

The demurrer to the bill on the grounds of duplicity and indefiniteness, was likewise properly overruled. S. v. Knotts, 168 N. C., 173, 83 S. E., 972. C. S., 4623, provides against quashal for informality if .the charge be plain, intelligible and explicit, and sufficient matter appear in the bill to enable the court to proceed to judgment. S. v. Haney, 19 N. C., 390. Besides, duplicity is ground only for a motion to quash, made in apt time, and is cured by verdict. S. v. Burnett, 142 N. C., 577, 55 S. E., 72. By apt time, in this connection, is meant before plea, for after plea of not guilty is entered, a motion to quash is allowable only in the discretion of the court. S. v. Burnett, supra.

Nor were the defendants entitled to their discharge because of the order.of mistrial, entered at the August Term as a matter of physical •necessity, i. the insanity of one of the jurors. S. v. Tyson, 138 N. C., 627, 50 S. E., 456. It is now the approved practice that in cases of necessity, which are of two kinds,- “physical necessity and the necessity of doing justice,” a mistrial may be ordered in capital as well as; other cases. S. v. Bell, 81 N. C., 591; S. v. Wiseman; 68 N. C., 203.

Even under the decisions in S. v. Garrigues, 2 N. C., 241, In re Spier, 12 N. C., 491, and S. v. Ephraim, 19 N. C., 162, where the authority of the court to order a mistrial in capital cases, without the consent of' the accused, was restricted to “urgent and overruling necessity,” and denied as a discretionary right, the present order could readily be upheld. But the strictness of these earlier decisions has been greatly relaxed in a number of the more recent cases. S. v. Cain, 175 N. C., 825, 95 S. E., 930; S. v. Upton, 170 N. C., 769, 87 S. E., 328; S. v. Dry, 152 N. C., 813, 67 S. E., 1000; S. v. Prince, 63 N. C., 529; 8 R. C. L., 153.

The law on the subject is stated in S. v. Tyson, supra, as follows: “It is well settled, and admits of no controversy, that in all cases, capital included, the court may discharge a jury and order a mistrial when if is necessary to attain the ends of justice. It is a matter resting in the sound discretion of the trial judge; but in capital cases he is required to find the facts fully and place them upon record, so that upon a plea of former jeopardy as in this ease, the action of the court may be reviewed.”

And in S. v. Cain, supra, the following was quoted from 8 R. C. L., 153, with approval: “Under the strict practice which anciently prevailed, in England at least, the discharge of the jury in a criminal case for any cause after the proceeding had advanced to such a stage that jeopardy had attached, but before a verdict of acquittal or conviction, was held to sustain a plea of former jeopardy, and therefore to operate practically as a discharge of the prisoner. In deference, however, to the necessities of justice, this strict rule has been greatly relaxed and the general modern rule is that the court may discharge a jury without working an acquittal of the defendant in any case where the ends of justice, under the circumstances, would otherwise be defeated.”

The fact that one of the defendants, of his own volition, had temporarily absented himself from the court room when the order of mistrial was first entered, did not deprive the court of the power, on learning of the situation, to strike out the order of recess and repeat the proceedings in the presence of all the defendants, if such were necessary,which may be doubted, the dictum in S. v. Alman, 64 N. C., 364, to the contrary notwithstanding. To hold otherwise on the facts- of -the present record would be to “strain at a gnat, and swallow a camel.”— Matt. 23 :24. “The judge is not a mere moderator, and it would detract very much from the efficiency and economy of the administration of justice if he were hampered with arbitrary rules as to matters which have always been committed to his sound discretion.” S. v. Southerland, 178 N. C., 676. 100 S. E., 187.

The order of mistrial in the instant case was fully justified, indeed rendered necessary, by the facts found by the court, fully set forth in the record, and the motion of the defendants for their discharge upon this ground was properly denied. S. v. Dry, supra.

It follows, therefore, as a necessary corollary, that, if the order of mistrial were properly entered, and we think it was, the defendants’ subsequent plea of former jeopardy cannot be sustained. S. v. Tyson, supra; S. v. Scruggs, 115 N. C., 805, 20 S. E., 720; S. v. Carland, 90 N. C., 668; S. v. Washington, 90 N. C., 664. In capital cases as well as others, where, for sufficient cause found and set forth in the record, the judge discharges the jury before verdict, it is proper to hold the prisoner for another trial. S. v. Jefferson, 66 N. C., 309.

In passing, it may be added that if the defendants were not on trial for murder in the first degree at the August Term, which does not affirmatively appear from the record (our only source of judicial knowledge, Southerland v. Crump, ante, 111), the discharge of the jury was a matter resting in the sound discretion of the court. S. v. Guthrie, 145 N. C., 492, 59 S. E., 652. And it is further suggested, that, assuming the proceeding at the August Term was for the capital ofEense, the defendants have not again been put on trial for their lives. But we have considered these exceptions as debated on brief.

The defendants stressfully contend that the dying declarations of the deceased, O. E. Aderholt, as detailed by a number of witnesses, should have been excluded, because, it is said, they contain expressions of opinion, rather than statements of fact, and do not purport to identify the defendants as the persons who did the shooting. The State, on the other hand, says that to sustain these exceptions would be to sacrifice the principle under which dying declarations are received in evidence to a mere form of words.

It will be readily conceded that dying declarations which state only opinions or conclusions of the declarant are not admissible in evidence. S. v. Williams, 67 N. C., 12; S. v. Jefferson, 125 N. C., 712, 34 S. E., 648; Underhills Crim. Ev. (3d), 244.

Proper foundation or predicate was laid for the introduction of the dying declarations in question, and the ruling of the court in admitting them is fully sustained by what was said in S. v. Franklin, 192 N. C., 723, 135 S. E., 859; S. v. Hall, 183 N. C., 806, 112 S. E., 431; S. v. Williams, 168 N. C., 191, 83 S. E.; 714; S. v. Bohanon, 142 N. C., 695, 55 S. E., 797, and S. v. Mace, 118 N. C., 1244, 24 S. E., 798.

The general rule is, that, in prosecutions for homicide, declarations of the deceased, made while sane, when in extremis or in articulo' moHis, and under the solemn conviction of approaching dissolution, concerning the killing or facts and circumstances which go to make up the res gestee of tbe act, are admissible in evidence, provided tbe deceased, if living and offered as a witness in tbe case, would be competent to testify to tbe matters contained in tbe declarations. S. v. Shelton, 47 N. C., 360; S. v. Williams, 67 N. C., 12; S. v. Mills, 91 N. C., 594; S. v. Behrman, 114 N. C., 797, 19 S. E., 220; S. v. Jefferson, supra; S. v. Laughter, 159 N. C., 488, 74 S. E., 913; Tatham v. Mfg. Co., 180 N. C., 627, 105 S. E., 423; Williams v. R. R., 182 N. C., 267, 108 S. E., 915; Dellinger v. Building Co., 187 N. C., 845, 123 S. E., 78; Lockhart on Evidence, 148; 21 Cyc., 974; 1 R. C. L., 527.

We bave a number of decisions to tbe effect that dying declarations are admissible in cases of homicide wben tbey relate to tbe act of killing, or to tbe circumstance so immediately attendant thereon as to constitute a part of tbe res gestee, and appear to bave been made by tbe victim in tbe present anticipation of death, which ensues. S. v. Laughter, supra. It is not always necessary that tbe deceased should express a belief in bis impending demise; it is sufficient if tbe circumstances and surroundings in which be is placed indicate that be is fully under tbe influence of tbe solemnity of such a belief, and so near tbe point of death as to “lose tbe use of all deceit” — in Shakespeare’s phrase. S. v. Bagley, 158 N. C., 608, 73 S. E., 995. In S. v. Tilghman, 33 N. C., 513, tbe Court said: “It is not necessary that tbe person should be in articula mortis (tbe very act of dying) ; it is sufficient if be be under tbe apprehension of impending dissolution, wben all motive for concealment or falsehood is presumed to be absent, and tbe party is in a position as solemn as if an oath bad been administered.”

It is tbe uniform bolding, here and elsewhere, that dying declarations, otherwise admissible, are not rendered incompetent by reason of tbe fact that tbey contain statements tending to show provocation, or tbe want of it, on tbe part of tbe accused, wben such utterances relate immediately to tbe act of killing, for then tbey are regarded as “short-band statements of fact.” Marshall v. Telephone Co., 181 N. C., 292, 106 S. E., 818; S. v. Mace, supra; S. v. Crean, 43 Mont., 47, Ann. Cas., 19120, 424, and note. Touching this point, the following from Chamberlayne on Evidence was quoted with approval in S. v. Williams, 168 N. C., 191, 83 S. E., 714:

“A sufficient administrative necessity for accepting an inference or conclusion in a dying declaration is furnished where a large number of minute phenomena, often so intangible and interblending as to forbid effective individual- statement, are given by tbe declarant in- tbe form of a ‘collective fact,’ often tbe only way in which a speaker can well express himself. Thus, a declarant may properly state that a given shooting was an ‘accident’ or that be bad been ‘butchered’ by tbe malpractice of a doctor, and so forth. Even where a considerable element of voluntary or intentional reasoning is present, tbe declaration may simply amount to tbe statement of a fact in a vigorous and striking way, summarizing a number of facts in a single vivid expression, e. g., ‘He sbot me down like a dog.’ ”

Nor was it error in tbe instant case for tbe trial court to overrule tbe defendants’ objections to tbe dying declarations of tbe deceased on the alleged ground that they did not purport to identify tbe defendants as tbe persons who did tbe killing. The statements of tbe deceased, in detailing tbe facts attending tbe infliction of bis fatal wounds, were evidently intended to relate to those who were present with guns, shooting, and tbe conclusion is permissible that bis references were to tbe defendants or to those on trial. S. v. Arnold, 35 N. C., 184. But even if this were doubtful, such doubt on tbe facts of tbe present record would only affect tbe weight, and not tbe competency, of tbe declarations. S. v. Watkins, 159 N. C., 480, 75 S. E., 22.

Tbe cross-examination of the defendant Beal with respect to tbe .distribution among tbe strikers of a Communist newspaper, known as The Daily Worker, was competent as tending to show tbe purposes and objects which the members of the union bad in mind, and the methods by which they proposed to accomplish those objects. It is a permissible inference’ that, as these publications containing criticisms of tbe police officers of the city of Gastonia, were distributed through tbe union headquarters, tbe members of tbe organization thereby intended to make such criticisms their criticisms, and any suggestions contained therein, their suggestions and advice. Spies v. People, 122 Ill., 1, 3 Am. St. Rep., 322, at p. 444; S. c., 123 U. S., 131.

Furthermore, it is an unquestioned truism that tbe cross-examination of a witness may be pursued by counsel as a matter of right so long as it relates to facts in issue or relevant facts which were tbe subject of bis examination-in-chief. Milling Co. v. Highway Com., 190 N. C., 692, 130 S. E., 724. When, however, it is sought to go beyond tbe scope of tbe examination-in-cbief, for purposes of determining tbe interest or bias of tbe witness and to impeach bis credibility, tbe method and duration of tbe cross-examination for these purposes rest largely in tbe discretion of tbe trial court. S. v. Patterson, 24 N. C., 346; Wigmore on Evidence (2d ed.), sec. 944 ei seq.j 28 R. C. L., 445. In S. v. Davidson, 67 N. C., 119, it was said that tbe tendency of modern decisions is to allow almost any question to be put to a witness, and to require him to answer it, unless it should subject him to a criminal prosecution. This was approved in S. v. Lawhorn, 88 N. C., 634, and S. v. Robertson, 166 N. C., 356, 81 S. E., 689. But in S. v. Winder, 183 N. C., 776, 111 S. E., 530, it was suggested that tbe rule, thus broadly stated, was subject to some exceptions, and called attention to tbe opinion in S. v. Holly, 155 N. C., 485, 71 S. E., 450, and wbat was said therein as to collateral testimony on tbe question of character.

Tbe strike, it should be remembered, was being conducted by tbe National Textile Workers Union, of which the defendant Beal was an officer and representative. The evidence tends to show that he was in reality the leader of the strikers and their chief counsellor. Hence, it was competent to cross-examine him as to the part he took in the distribution of the publications in question. Spies v. People, supra.

What has been said with respect to the cross-examination of the defendant Beal, concerning the distribution of copies of The Daily Worker, applies equally to the cross-examination of Mrs. Edith Saunders Miller, wife of Clarence Miller, relative to the substance of what she taught the strikers’ children. Mrs. Miller was organizer of the children’s section of the union and had been asked by the national office, in fact by the president of the union, to come to Gastonia and help organize the workers in the textile' industry, which she was then engaged in doing. Note to Spies v. People, 3 Am. St. Rep., 473.

It is charged that the defendants had conspired and unlawfully agreed among themselves to resist the officers of the law, representatives of the government, and it was, therefore, competent to ascertain what part, if any, they 'took in exciting resistance to the officers and discontent with the government. King v. Hunt, 3 Barn. & Aid., 566. The questions propounded in this respect were not improper. Commonwealth v. Sacco, 255 Mass., 369, at p. 439.

We now come to the exceptions upon which the defendants place great reliance for a reversal of the judgments, to wit, those taken during the cross-examination of Mrs. Miller with respect to her religious views.

The question sought to be presented by these exceptions is whether the witness, whose competency as such is not assailed, and who is not a party, can be interrogated, on cross-examination, as to her religious belief or unbelief, for the purpose of discovering her credibility.

The right so to interrogate a witness has been affirmed in some jurisdictions and denied in others, depending upon the constitutional and statutory provisions in the respective states at the time. S. v. Washington, 49 La. Ann. Cas., 1602; 42 L. R. A., 553, and note; Clinton v. State, 53 Fla., 98, 12 Ann. Gas., 151, and note; 40 Cyc., 2613.

It was provided by section 19 of the Declaration of Rights, Constitution of North,Carolina of 1776, “That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience.” This was amended with the adoption of the Constitution of 1868, so as to read as follows: “Sec. 26. Religious liberty. All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority should, in any case whatever, control or interfere with the rights of conscience.”

Ve are not now called upon to say, nor do we decide, what effect, if any, this change in the organic law had upon the then existing disqualification of witnesses, or upon the right of the Legislature thereafter to render persons incompetent to testify as witnesses, on account of their opinions on matters of religious belief. Nor do we find any case, heretofore decided, dealing with the effect of this change. S. v. Pitt, 166 N. C., 268, 80 S. E., 1060; Lanier v. Bryans, 184 N. C., 235, 114 S. E., 6.

The point stressed on the argument and debated on brief is not what questions may be put to a person on his voir dire to test his competency to be sworn as a witness, but whether a witness, whose competency is not challenged and who is not a party; may be interrogated, on cross-examination, concerning his opinions on matters of religious belief, for the purpose of affecting his credibility.

Under sections 3189, 3190 and 3191 of the Consolidated Statutes witnesses are required to be sworn or affirmed to speak the truth before they are allowed to testify, but we have no statute dealing with the exact question under review. See valuable article by Hon. J. Crawford Biggs in North Carolina Law Review, December, 1929, entitled, “Religious Belief as Qualification of a "Witness.” And further, as bearing on the policy of the State, it may be observed that “all persons who shall deny the being of Almighty God” are disqualified for office under Article YI, sec. 8, of the Constitution. Ours is a religious people. This is historically true. American life everywhere, as expressed by its laws, its business, its customs, its society, gives abundant recognition and proof of the fact. Church of the Holy Trinity v. United States, 143 U. S., 457.

Competency and credibility are two different things. A person may be a competent witness and yet not a credible one. The law declares his competency, but it cannot make him credible. “The credibility of a witness is a matter peculiarly for the jury, and depends not only upon his desire to tell the truth, but also, and sometimes even to a greater extent, upon his insensible bias, his intelligence, his means of knowledge and powers of observation.” Cogdell v. R. R., 129 N. C., 398, 40 S. E., 202.

Cross-examination is one of the principal tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears witness, the manner in which he has used those means, his powers of dis-eernment, memory, etc., may all be fully investigated in the presence of the jury, to the end that an opportunity may be afforded for observing his demeanor and determining the weight and value which his testimony merits. Milling Co. v. Highway Commission, supra. Ordinarily, therefore, a witness may be asked any questions -on cross-examination which tend to test his accuracy, to show his interest or bias, or to impeach his credibility. Gr. Ev. (16th ed.), sec. 446.

This much is conceded, but it is contended that a personal scrutiny into one’s faith and conscience, or defect of religious sentiment and belief according to the prevailing opinion of the community at the time, has no proper bearing on the question as to whether he condemns falsehood or holds truth as a virtue, and is therefore contrary to the spirit of American institutions. Brink Stratton., 176 N. Y., 150, 63 L. R. A., 182; Bush v. Commonwealth, 80 Ky., 244; Free v. Buckingham, 59 N. H., 219; Perry v. Commonwealth, 3 Gratt. (Va.), 632.

The following statement appears in 30 A. & E. Enc. of Law, 1096: “Laws providing that no person shall be incompetent to testify on account of religious belief, that no control of or interference with rights of conscience shall be permitted, or the like, have been held not only to make persons competent to testify without regard to religious belief or unbelief, but also to prevent any inquiry into that belief for the purpose of affecting credibility.” People v. Copsey, 71 Cal., 548; Starks v. Schlensky, 128 Ill. App., 1; Dickinson v. Beal, 10 Kan. App., 233; People v. Jenness, 5 Mich., 305; White v. Com., 96 Ky., 180; Louisville, etc., R. Co. v. Mayes, 26 Ky., 187.

But is it an interference with the rights of conscience, or an effort to control such rights (prohibited by our Constitution), to interrogate a witness about his opinions on matters of religious belief ? It is not proposed to change his opinions or to disturb them in any way. It is only sought to discover what opinions he entertains — those of his own choosing — so as to enable the jury, as far as such indications will allow, to know what manner of thoughts he is thinking at the time he testifies. It has been said that a man is what he thinks, “For as he thinkoth in his heart, so is he.” Prov. 23:7,

It has been held, in a number of States, where persons are excluded as witnesses for defect of religious sentiment and belief, that if the ordinary oath is administered to a witness, without his making any objection to its form, he may be asked, on cross-examination, whether he thinks the oath binding on his conscience. I Gr. Ev., sec. 371. See, also, Stanbro v. Hopkins, 28 Barb. (N. Y.), 265.

And in Carver v. U. S., 164 U. S., 694, speaking of dying declarations and their impeachment, the Court said: “They may be contradicted in the same manner as other testimony, and may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of rewards or punishments,” citing a number of cases as authority for the position. To like effect is the decision in Cambrell v. State, 92 Miss., 128, 31 Am. St. Rep., 549, 11 L. R. A. (N. S.), 291.

It is not an interference with the constitutional rights and liberties of a witness to require him to disclose, on cross-examination, his present situation, employment and associates; as for example, in what locality he resides, what occupation he pursues, and whether or not he is intimately acquainted and conversant with certain persons; for, however these may disparage him in the eyes of the jury, they are of his own selection, and constitute proper matters of inquiry; subject, of course, to the rule against self-incrimination. Gr. Ev., sec. 456; S. v. Simpson, 9 N. C., 580; Note, 15 Am. St. Rep., 318; 28 R. C. L., 423.

On the other hand, it may be queried that, if one’s religious belief or unbelief is not to affect his competency as a witness, but may be inquired of to affect his credibility, have not his rights of conscience, for all practical purposes, been affirmed and denied in the same breath ? What boots it, ask the advocates of this view, whether he be refused the right to testify altogether, or being permitted to testify, have his testimony discredited and rejected by the jury, if, in the end, they both amount to the same thing? In this connection, it is contended that there is no essential difference between a refusal to hear and a rejection after hearing. Brinkc v. Stratton, supra; Bush v. Commonwealth, supra; Perry v. Commonwealth, supra. By statute in Indiana, and perhaps in other States, it is provided that wánt of religious faith shall not affect the competency of a witness, but shall go only to his credibility. Snyder v. Nations, 5 Blackf., 295.

There are those who feel more deeply over religious matters than they do about secular things. It would be almost unbelievable, if history did not record the tragic fact, that men have gone to war and cut each other’s throats because they could not agree as to what was to become of them after their throats were cut. Many sins have been committed in the name of religion. Alas! the spirit of proscription is never kind. It is the unhappy quality of religious disputes that they are always bitter. For some reason, too deep to fathom, men contend more furiously over the road to heaven, which they cannot see, than over their visible walks on earth; and it is with these visible walks on earth alone that we are concerned in the trial of causes. In recognition of this fact and because “our civil rights have no dependence on our religious opinions,” as proclaimed by Thomas Jefferson and embodied in the Virginia statute of religious freedom, it was provided in the North Carolina Constitution of 1868, that “no human authority should, in any ease whatever, control or interfere with the rights of conscience.”

Cogent reasons may be advanced on'both sides of the question, and were advanced on the argument in this case. But we do not think the record’ calls for an interpretation of the constitutional provision, above set out, or for a definite ruling on the question debated. The answers of the witness, taken in connection with her previous testimony, do not show that she intended to express disbelief in a Supreme Being, or to deny all religious sense of accountability, such as would have disqualified her as a witness at the common law, or under the Declaration of Eights of 1776. Shaw v. Moore, 49 N. C., 25; Note, 12 Ann. Cas., 155. But even if error were committed in not sustaining objections to the questions propounded, which is not conceded, it would seem that, in the light of the answers elicited, no appreciable harm has come to the defendants, if harm at all, and that the verdicts and judgments ought not to be disturbed on account of these exceptions.

Mere error in the trial of a cause is not sufficient ground for a reversal of the judgment. To accomplish this result, it should be made to appear that the ruling was material and prejudicial to appellant’s rights. S. v. Heavear, 168 N. C., 156, 83 S. E., 732; S. v. Smith, 164 N. C., 475, 79 S. E., 979; Cotton Mill v. Hosiery Mills, 181 N. C., 33, 106 S. E., 24. The foundation for the application of a new trial is the allegation of injustice arising from error, but’for which a different result would likely have ensued, and the motion is for relief upon this ground. Unless, therefore, some wrong has been suffered, there is nothing to relieve against. The injury must be positive and tangible, and not merely theoretical. In re Ross, 182 N. C., 477, 109 S. E., 365; Brewer v. Ring and Valk, 177 N. C., 476, 99 S. E., 358.

The exception with respect to what the defendants proposed to show by Plummer Stewart, offered as a sustaining character witness to a character witness, is not properly presented. It is not stated that the witness, if allowed to testify, would have qualified and given evidence as suggested. S. v. Steen, 185 N. C., 768, 117 S. E., 793. The exception is not sustained.

The instruction of the court that the testimony of the defendants who went upon the stand and testified in their own behalf, should be scrutinized with care to ascertain to what extent, if any, their testimony was warped or biased by their interest, adding, however, that if, after such scrutiny, they believe the defendants, they should give the same credit to their testimony as if they were disinterested, is supported by what was said in S. v. Ray, 195 N. C., 619, 143 S. E., 143; S. v. Green, 187 N. C., 466, 122 S. E., 178; S. v. Lance, 166 N. C., 411, 81 S. E., 1092; S. v. Fogleman, 164 N. C., 458, 79 S. E., 879; S. v. Graham, 133 N. C., 645, 45 S. E., 514; S. v. Lee, 121 N. C., 544, 28 S. E., 552; S. v. Byers, 100 N. C., 512, 6 S. E., 420. Tbe exceptions to this instruction are not well founded.

The motion in arrest of the judgments on the second, third and fourth counts, for that, it is alleged, the defendants were not required to plead to the bills containing these charges, was properly overruled. S. v. Mitchem,, 188 N. C., 608, 125 S. E., 190; Note, 13 L. R. A. (N. S.), 811.

In the first place, no objection seems to have been entered by the defendants to the motion of the solicitor that the four bills be consolidated and tried as different counts in a single indictment. S. v. Lewis, 185 N. C., 640, 116 S. E., 259. The defendants had already entered a plea of not guilty to the principal bill charging murder, and it may well be said that this plea applied to any and all counts, subsequently added thereto without objection, which related to the same transaction. S. v. Malpass, 189 N. C., 349, 127 S. E., 248; S. v. McNeill, 93 N. C., 552. But if it were otherwise, and the principle announced in S. v. Cunningham, 94 N. C., 824, that an issue raised by plea is essential to a valid verdict, should be held to be applicable, still this could avail the defendants but little on the present record, because they were specifically convicted on the first count, which is not challenged by the motion in arrest. S. v. Toole, 106 N. C., 736, 11 S. E., 168.

Furthermore, the sentences on all the counts, as to each and all of the defendants, are made to run concurrently, and, in each instance, the judgment on the first count is longer than the sum of the judgments on the other counts. So, even if error were committed with respect to these lesser counts, it would not affect the verdict and judgment on the first count. S. v. Coleman, 178 N. C., 757, 101 S. E., 261; S. v. Jarrett, 189 N. C., 516, 127 S. E., 590.

The motion to set aside the verdicts and for a new trial on the ground of alleged prejudicial appeals by the solicitor in his closing argument to the jury is, in its very terms, addressed to the discretion of the court, and there is nothing on the record to show any abuse of discretion or that the solicitor exceeded the limits of fair debate. S. v. Phifer, 197 N. C., 729, 150 S. E., 353; S. v. Green, ibid., 624, 150 S. E., 18; S. v. Tucker, 190 N. C., 708, 130 S. E., 720.

The general rule is, that what constitutes legitimate argument in a given ease is to be left largely to the sound discretion of the trial court, which will not be reviewed on appeal unless the impropriety of counsel be gross and well calculated to prejudice the jury. Lamborn v. Hollingsworth, 195 N. C., 350, 142 S. E., 19; Jenkins v. Ore Co., 65 N. C., 563.

Speaking to the subject in S. v. Tyson, 133 N. C., 692, 45 S. E., 838, Walker, J., delivering the opinion of the Court, said: “We conclude, therefore, that the conduct of a trial in the court below, including tbe argument of counsel, must be left largely to tbe control and direction of tbe presiding judge, wbo, to be sure, should be careful to see that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his case, and when counsel grossly abuse their privilege at any time in the course of the trial the presiding judge should interfere at once, when objection is made at the time, and correct the abuse. If no objection is made, while it is still proper for the judge to interfere in order to preserve the due and orderly administration of justice and to prevent prejudice and to secure a fair and impartial trial of the facts, it is not his duty to do so in the sense that his failure to act at the time or to caution the jury in his charge will entitle the party who alleges that he has been injured to a new trial. Before that result can follow the judge’s inaction, objection must be entered at least before verdict.”

This was further amplified in S. v. Davenport, 156 N. C., 596, 12 S. E., 7, ás follows: “In the passage taken from S. v. Tyson, we did not intend to decide that a failure of the judge to act immediately would be ground for a reversal, unless the abuse of privilege is so great as to call for immediate action, but merely that it must be left to the sound discretion of the court as to when is the proper time to interfere; but he must correct the abuse at some time, if requested to do so; and it is better that he do so even without a request, for he is not a mere moderator, the chairman of a meeting, but the judge appointed by the law to so control the trial and direct the course of justice that no harm can come to either party, save in the judgment of the law, founded upon the facts, and not in the least upon passion or prejudice. Counsel should be properly curbed, if necessary, to accomplish this result, the end and purpose of all law being to do justice. Every defendant ‘should be made to feel that the prosecuting officer is not his enemy,’ but that he is being treated fairly and justly. S. v. Smith, 125 N. C., 618.”

In the instant case, it appears that the court promptly stopped the solicitor on objection being made to his argument by counsel for the defendants, and at one time the court of its own motion directed the solicitor to stay within the record, but there is nothing to show the character of the argument or that the judge failed to do his full duty in this respect.

There are numerous other exceptions in the case, all of which have been examined with care. Even if there be technical error in some of the rulings, this alone would not work a new trial. We are convinced, from a searching scrutiny of all that transpired on the hearing, to which exceptions have been taken, that substantial justice has been done, and that no reversible error has been made to appear. The verdicts and judgments, therefore, will be upheld.

No error.

Case Details

Case Name: State v. Beal

Court Name: Supreme Court of North Carolina

Date Published: Aug 20, 1930

Citation: 199 N.C. 278

Court Abbreviation: N.C.