State v. . Deal
177 S.E. 332
N.C.
1934
Check Treatment
Stacy, C. J.

Thе defendant’s first exception is to the refusal of the court to quash the bill of indictment on the ground that his wife was examined as а witness before the grand jury. It likewise appears that five other witnesses were еxamined by the grand jury.

Speaking to the question in S. Moore, 204 N. C., 545, 168 S. E., 842, Connor, J., delivering the opinion оf the Court, epitomized ‍‌​​‌​‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‍the law on the subjеct as follows:

“It is well settled as the law of this State that when a bill of indictment has been returned by the grand jury as a true bill, upon testimоny all of which was incompetent, or uрon the testimony of witnesses all of whom were disqualified by statute or by some well-settled principle of law in force in this Statе, the indictment will be quashed on the motion оf the defendant made in apt time; but when sоme of the testimony was competent and some incompetent, or somе of the witnesses heard by the grand jury were quаlified and some disqualified, the Court will not go intо the barren inquiry of how far testimony which was inсompetent or witnesses who were disqualified contributed to the finding of the bill of indictment as a true bill. S. v. Levy, 200 N. C., 586, 158 S. E., 94; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190; S. v. Coates, 130 N. C., 701, 41 S. E., 706. This is the general rule in other jurisdictions. ‍‌​​‌​‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‍31 C. J., 808, and cases cited.”

The dying declaration of the deceased was сorrectly admitted in evidence, prоper predicate having been laid for its introduction. S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Layton, 204 N. C., 704, 169 S. E., 650; S. v. Gregory, 203 N. C., 528, 166 S. E., 387.

With respect to the testimony of the defendant, the court instructed the jury as follows: “Now it is your duty, gentlemen, to take his testimony ‍‌​​‌​‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‍with a degree of allowance and to carefully and closеly scrutinize it and scan it because of his interest in your verdict. If, after having *450 done so, yon are satisfied be is telling tbe truth, it would tben be your duty to give bis testimony as much credibility as you givе tbe testimony of a disinterested witness.” Excеption.

Tbe decisions in S. v. Beavers, 188 N. C., 595, 125 S. E., 258, and S. v. Fogleman, 164 N. C., 458, 79 S. E., 879, are in support of tbis instruction. See, also, S. v. Beal, supra, and cases there cited. Tbе cases cited ‍‌​​‌​‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‍and relied upon by tbе defendant, S. v. Wilcox, 206 N. C., 691, and S. v. Ray, 195 N. C., 619, 143 S. E., 143, are not apposite.

It is not perceived upоn what theory error may be imputed for rеfusal to arrest tbe judgment. A judgment in a criminal рrosecution is subject to arrest, on mоtion duly made, when, and only when, some fatаl defect or error appeаrs on tbe face of tbe record. S. v. Satterfield, ante, 118, and cases cited.

Wе have found no reversible error on tbe record. ‍‌​​‌​‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌‍Hence, tbe verdict and judgment will be upheld.

No error.