*1 IN THE SUPREME Gragg. charge of the law such under a correct for the upon. exception only relied was the cases.
New trial. A. GRAGG. STATE SIMON 26, May 1898.) (Decided Trial—Sufficiency Evi- Indictment Murder— for dence. murder, that, appeared by ex- When, for it trial of one indicted house, dynamite persons sleeping there plosion of under two were public kept dyna- killed; overseer of a road and that defendant was road; making possession for use that in his mite persons neighborhood; by in the kept and that used was also by M, employed deceased had had been dis- defendant it; quarrelled him, and had that that defendant missed B, unfriendly the deceased of whose attentions to had been engaged, jealous; he widow, defendant to whom (marry they deceased widow should had said country; that he together live and B had “made never should out;” “from the had saidit teeth up” defendant an 8 or 9 shoe on some tracks the hillside were yards of the homicide hundred which was the few wore; after the defendant shoe homicide the size Held, nervous; that, pale and as the did looked defendant every supposition reasonable could have been not exclude prisoner, justify than the it did one other some done guilty. finding a jury in verdict J., J. Montgomery, dissent. Clark tried J., murder before Hoke, Indictment Special Superior Term of Caldwell 1897, June, at convicted of defendant was murder in Court. appealed. fully degree facts are stated first dissenting opinion J., and in the Furches, opinion J. Clark,
N. TERM, .FEBRUARY C.] Gragg. *2 and Walser,
Mr. Zeb V. Attorney General, Mr. W. Newlancl, State. C. W. Id. Bower and Edmund Z. Linney,
Messrs. B. (appellant). for defendant Jones, J.: The evidence tends to establish hor-
Furches, hardly disputed, though murder. rible This was there offered to show that the deceased Moore possession dynamite, in had been which he had some- times used. evidence tends to show that sleep Moore and deceased Bowman went to in this up eternity; question world and woke for the identity. one exceptions There are to evidence but cannot be ruling upon sustained, and the of the court defendant’s exceptions upon principles as to evidence are based so sustained often this court that we cannot think it profitable profession to the defendant or the to discuss opinion. them this exceptions (which charge, are
There to his Honor’s exposition a fair and seems to us to correct provided there was sufficient evidence to submitting jury, him in authorize the case to the justify finding them verdict of guilty.) to contended there was not asked the This his Honor to instruct declined court presented question ap- the real this is this do, , peal. contended for the State that is some evi-
It is guilt, being and, so, of defendant’s dence takes jury, to the and that this court cannot case correct N. C., 257, cites Allen, verdict; their attorney gen- which the cases, and a number of other prop- If the this contention. first eral contends sustain IN THE SUPREME Gbagg. ©. evidence to that there is sufficient author- osition is true finding then the second ize the certainly cannot review be true —that this Court finding. their question are that we
But case called decide; there is whether sufficient evidence justify finding. ques- their and to embarrassing probably tion is often courts any question gives them as much trouble as comes disposition them; that is in before and with all *3 persons responsibility, to it is but natural it avoid that the should be left to when it sometimes should be by Judge. And it in decided the is considered best questions very great doubt that it should be left to the necessary that
This makes it we should review the testimony connecting what evidence there is see the corpus doing defendant with delicti. In the we do expect testimony qúote (though the we carefully all) call examined attention to strongly prisoner. parts bearing against most the those by tending There was evidence offered the State prisoner lived a a half that mile and from show homicide; place man, that he of the was a well-to-do public road, was overseer of the and had been and was dynamite possession time in at that used making “there in road: was also evidence that by persons community, in was had other fishing blasting . . and and used them . purposes;” employ in he had at one time been that prisoner dismissed the who from deceased, prisoner employ, deceased, Moore, quarrel prisoner matter; that had about the unfriendly; pris- had been deceased, that Bowman, TERM, FEBRUARY 0.]N. Geagg.
State a widow Benfield had courted discarded had oner prisoner thought, preferred as she Bow- because, him prisoner; prisoner and that man a suitor to had marry, Bowman did if she and should never said, country: prisoner together in this that and deceased live prisoner friends, but after this said it made “only out;” the teeth were some tracks an 8 or shoe on hillside few hundred place prisoner homicide, yards from prisoner plowing that- was seen shoe; 8 or an wore early unusually morning, nest a half a field men where the were and that killed; ofmile pale pris- looked next nervous. The no evidence. introduced oner substantially all the evidence case, tends to connect the we think
all do if this tends to so. It cannot be homicide, de suspicion sufficient evidence was to cast nied prisoner. But does it do more than this? There confession or evidence declarations amounting There was no to confessions. *4 tending prisoner to show was nearer or
shown than his home one and a the homicide half of ' found tracks on the hill The shoe side not off. miles connecting no evidence were off far peculiarity killing, nowas shown about as there prisoner’s shoes. No.- or is the ordi tracks may men wear. nary Threats be offered number purpose fixing degree of malice for to show competent, may as some evidence, be tend crime, identity. purpose But for prove it ing any. The rule not slight is, there is evidence, but that it must be evidence, scintilla, such some Wittkowsky reasonably justify the verdict. IN THE SUPREME Gjjagg. Spruill C., Co., C., v. Ins. 120 N. 71 N. Wasson, 451; 121 N. 141; Wilson, C., Caldwell charged among' things court, eye witness has testified that he saw the follows: “No do this deed. State relies on facts guilt it circumstances which claims establish prisoner. relied on for When such is convic- every necessary material circumstance must tion, beyond doubt, he established reasonable and the entire strong circumstances so established must so as to every supposition guilt.” but that exclude reasonable charge “clear cut” correct statement man, But can reasonable of the law. unbiased say prejudice, that the evidence in without this case, taking every thing proved (and true, to be that is the light court,) in which it must be considered every supposition excludes reasonable it could prisoner? one other than the been done some discussing further', Without the matter the statement correctly given this, intelligent all we think affords the answer to minds, deliberately negative. considered, when coolv say intending any This we without reflection on the integrity that tried the case. It awas shock- throwing suspicion ing affair. There was evidence prisoner. He introduced no not evidence—did deny charge. stand and on the witness And while says doing this, the law he need not do and that his not against impossible him, not be it shall considered prevent having it from effect In its opinion our it this case. opinion
In our such evidence of the guilt justify finding prisoner’s *5 as to a N; FEBRUARY TERM, 1898. O.] Gragg.
State verdict of Another guilty. may trial develop Error. evidence.
New trial. J., A Clark, is the constitutional dissenting: jury for the trial of mode facts are com provided juries men, of twelve not of thirteen. It is not posed refuse to let a cause to the Judge go jury unless mind a evidence is sufficient (sitting juror) If it then the were, convict. fact that the submits Judge a to the at all case becomes the kind of an jury strongest in his intimation should opinion convict. 695; C., 117 N. Green, State v. 115 N. Kiger, ; 101 N. Christmas, C. 749. If after a ver C., Judge thinks, dict guilty notwithstanding which is due tb the respect unanimous of twelve opinion men, justice interests of demand a new impartial trial, he with the is vested discretion to it. But grant different from a law is as matter of that there very holding no evidence to to the jury, is different matter go court, from this out of of the wit sight hearing trial, nesses as matter surroundings holding law that there was evidence to to the go jury, of. when the found that there was sufficient to find a learned has prisoner guilty, just Judge held of law that evidence to so little enough as a matter of doubt about its refused weight to set the verdict aside. Beides must be discretion remembered that the trial below presumption in favor of the must prisoner, innocence overcome, beyond by proof satisfying there is no such doubt, pre reasonable but on appeal fact, but on the there is contrary presump sumption ruled tion of law that below Judge correctly, and, *6 THE IN SUPREME Geagg. if the in or court is doubt, this is overcome unless There have been stand. cases where judgment must the no evidence sufficient submit case to the has held otherwise and judge when the has refused even judge as a convicted, has aside, verdict set the it must matter of discretion a constrain court of a that should appeals bald case convicted and the sustained judge hold If evidence. the evidence the verdict without court, sitting jurors, such merely we are not authorized to convicted, not have interfere. invade the To would be to province do so well, below all of whom are and of the Judge pre in of competent impartial sumed discharge confided to them Constitution and duties Laws. we have no We errors of authority correct Now, a of fact by correct was there finding ‘£ case, in an absence of evidence entire nothing ” mere ? scintilla beyónd 4, 1896, It in That on June at a shanty evidence: mill in Walter County, at Caldwell Moore and saw an Bowman were killed explosion dyna- Dallas under placed mite which had been part where the bed which the stood deceased shanty slept. As a remained rule, persons mill-yard at The mill was to have these two. night, except the next There was evidence that day. removed or about it on the shanty was no dynamite and none control of the possession the explosion in a lived house deceased; G-ragg, Simon prisoner, a mile through three-fourths of woods from it, and mile and a half round going shanty overseer road; public public admitted just prior road and explosion having TERM, 1898. FEBRUARY N. 0.] Ghagg. joints dynamite; he had used fre- or 33 quently knew how to use the sheriff it; searched *7 explosion and found his after house soon joints dynamite. A witness testified that on the prisoner’s night explosion he was at the after the house him whom he had and heard his brother Tom ask dynamite, prisoner replied letting “No ” day explosion and Tom said of the one, he had joints lying it, 5 or 6 of the near box, seen out awith cap joints. fuse and on one of the The evidence was kept prisoner his under his bed. prisoner There was evidence that the and Walter Moore, quarreled one of the had deceased, few months before were heard to curse each other a short time before explosion; Bowman, that Dallas the other deceased, neighborhood into come a few months before ; enmity sprung deep up prisoner that a between the prisoner engaged Bowman, and that the to be mar- neighborhood, ried a widow in but he became jealous of Bowman that she discarded him, prisoner put if said that she him off on' account of Bowman she should country; never live with him in this days explosion ten before the prisoner Betty asked Baird about the relations between the widow quit Bowman, said “Alice him for Bowman there would be the country damndest time this Monday just knew;” ever that on the before the killing enquiring he was where Bowman boarded; that the mill prisoner’s stipulated was on the land and he had when allowing put to there that Bowman should not be employed there. Two three months before the kill- ing along he had waited the road for Bowman and enquired coming. if he were It was also prisoner’s that between the house and the mill a recent 122—69 IN THE SUPREME Gragg. through leading the woods from
track was discovered mill, of the in the direction occasional the house log impressions, especially distinct on a about 100 feet 9, long; No. 8 or was a shoe the size the the track prisoner the con- wore. witnesses testified Some ground the after the on the duct suspicion; killing peculiar, and calculated arouse apart pale, preoccupied, from others; and stood he was through and witness started the woods when the sheriff said need not do tracks, to look. enough did this was smart for the man who that, up tracks, another he said that the and to cover morning road. did came around the man *8 conspicuous explosion plowing he the was after sun-up, place a mile from before road-side, on the for him unusual time to he house, which was going mill evidence to the There was at work. agitated explosion being was told of the he after soon stop and did not had to once or twice said he be there. There was some he would able to believe contradictory bearing the of his at house after evidence considering explosion, whether there is but in only necessary against to consider that it is evidence prisoner. evidence for the There no offered defence. submitted to this court as case could be this
If great at a upon we should be disadvan- evidence, Judge compared it, who tried tage, bearing presence of the had the we not knowledge upon stand, witnesses witnesses surroundings nor the had, same reproduction of evidence argument of counsel. poor for Uponpaper But it is not us is a substitute. sitting jurors, say evidence, whether N’ 0.] FEBRUARY TERM, Gbagg. power. we would convict. We have no such Nor say sitting judge, for us as a we whether, trial granted not have a new trial aas matter of discretion. power duty That aré confided to him and not power reviewable. The sole to declare confided us is presumption as a of law that of the ruling correctness of the and that below is overcome plainly jury. no to a evidence to be submitted motive, strong There was and bitter threats motive, killing dynamite, shown, the fact posses- pieces in his and seven disappeared just killing, sion and he at the time of recently made no effort to for account track it, leading through from his house the woods to way homicide, road, ’shorter than around prisoner’s, and that the track was the size of hunting discourage the remarks of the agitation. the tracks and his sufficient, No one was together enough taken to be the-whole jury. submitted to the
That these circumstances could declared appeal plain. evidence, would seem Whether were sufficient evidence was for the There are many cases which this court hold has refused to less *9 than this to be no v. evidence. State Green, C., Young ; C., 117 N. 695 v. Alford, 118 N. 215 ; State Kiger, Chancy, v. 115 C., N. C., State v. N. 746; 110 507; Christmas, State v. 101 N. v. Powell, State C., 749; 965; 94 C., N. Atkinson, v. N. 519; State 98 State C., Kinsey, White, v. 89 N. C., N. 462; C., Brown 81 v. 245; 401; State Waller, 80 N. C., Patterson, C., 78 N. State v. 470; 257; 48 N. Sutton Allen, C., Fogalman, 320; 47 N. Madre, C., C., Cobbv. 23 N. many others. SUPREME COURT. IN THE v. IIokd. preserved from has been
The of institution by many upon the decisions encroachment at this term Chapter application of 1897. the Acts 109 of of upon prerogative upon its an encroachment deplored be criminal less to but not side, account. dissenting opinion. I concur J.:
Montgomery, STATE v. J. G. HORD. April 26, 1898). (Decided Violation Town Ordinance —Discrimination— of
Nuisance. others, public, injury annoy- or to 1. not an or A nuisance is person family. a to himself and ance which causes Code, 3802) (Section of as at common Under the Statute well prohibit keeping 'of a can town Commissioners protect the hog pens public in a an extent as to town such from nuisances, necessary prescribed they the limits to be and of are purpose judges the ordinance for the sole unless unreasonable. discrimination, prohibits is not for
3. A town ordinance void pens yards keeping hog from within residence of citizen keeping prohibit him from does not them within another but from his own. like distance for the violation ordinance of action Civil King’s tried before Mountain, Hoke, J.,
town Superior Court, Term, 1897, at Fall Cleveland Mayor judgment appeal of said town. question was as follows: ordinance £‘ keep hog pen Any hog person shall yards dwelling, hundred of another’s within one therein pay a'fine of five dollars shall well, storehouse