State v. Howard, 129 N.C. 584

Lead Opinion

Clark, J.

The defendants, J. L. Howard alias Thompson, Gonez Bono alias A. L. Daley, and H. D. Hawley, are indicted for a conspiracy 1» defraud. The indictment was in three counts. At the close of the evidence for the State, the defendants moved the Court to- require an election by the State upon which count it would rely for conviction. Thereupon the Solicitor elected to rely upon the first count, and entered a "nolle prosequi as to the second and third counts:— these other counts to be referred to as furnishing particulars.” Upon this being done, the defendants asked the Court to instruct the jury to' return a verdict of not guilty, and etxcepted to the refusal. The defendants introduced no> evidence.

The three counts were simply a description of the same transaction in different ways, and. the joinder was unobjectionable. The Court need not, therefore, have required an election.’ State v. Barber, 113 N. C., at page 714, citing State v. Morrison, 85 N. C., 561; State v. Allen, 107 N. C., 805; State v. Harris, 106 N. C., 682; State v. Parish, 104 N. C., 679; State v. Horan, 61 N. C., 571, 576.

Tlio evidence is uncoartradicted, and its chief features will be set out by the reporter in the statement of the case. It is almost dramatic in its details, and presents with striking clearness the methods of a fashion of swindling, which has doubtless been little practiced in this State. The indictment in full will also be copied by the reporter.

The first exception is, that the indictment did not set out the means by which the conspiracy was to be executed. The point is expressly decided in State v. Brady, 107 N. C., 822, where it is held, upon our own authorities, that a conspiracy to cheat and defraud need not charge the means to' be used. Such was also' the common law, as will be seen by reference to the English cases therein cited; also, citing Commonwealth v. McKisson, 8 S. & R. (Pa.), 419; 3 Greenleaf Ev., sec. 95 ; and while stating that some States had held differently, this Court decided to abide by our own and the English rule. The learned counsel from Illinois, who ably argued this exception for the defendants, admitted this, but at great length endeavored to persuade us to overrule our own decisions, contending that the weight of authority in this country was to the contrary. We think not, but if it were, that alone would not be sufficient to induce us to change, unless injustice was shown to follow from our decisions. In fact, however, the weight of authority in other States seems to uphold our ruling. Among many cases to like effect are State v. Noyes, 25 Vt., 415; State v. Bartlett, 30 Mo., 132; State v. Crowley, 41 Wis., 271; Thomas v. People, 113 Ill., 351; State v. Stewart, 59 Vt., 273; State v. Grant, 86 Iowa, 216; People v. Clark, 30 Mich., 310; 2 Bish. New Crim. Proc., sec. 207(2).

The Code of Civil Procedure, sec. 259, provides: “The Court may in all cases order a bill of particular’s of the claim of either party to be furnished.” In this case these particulars were fully furnished by the second and third counts, which were only not prossed at the instance of the defendants and after the close of tih.e evidence, so that they were in full possession of all the information which a bill of particulars could have furnished them.

The next exception was for refusal of the motion to quash: '‘For th'at the allegations in the said bill of indictment, and in each and every count thereof, do not constitute a crime under the Ordinance of Conspirators, made and accorded by King Edward the First and his Council in the thirty-third year of his reign, A. D. 1305, nor by any statutes in England since that date, nor under any common law in force in the State of North Carolina at the date of the said alleged offense.”

With reference to the statute 33 Edward I, de conspiratori-bus, Judge Council charged the jury as follows:

“Its existence can be traced back centuries prior to’ our Independence) and such eminent ancient law writers as Coke, H awldns and others, refer in their works to' the existence of this crime prior to the passage of the Statute 33 Edward I, de conspiraioribus, which statute has been commented upon by counsel for the defendants. Law.writer’s upon the subject of conspiracy generally agree that the statute referred to was only declaratory of the common law to the extent of the crimes enumerated in the act, leaving the common law as applicable to all other forms of conspiracy known to' the law.”

The cases sustaining his Honor’s view of the law of conspiracy are numerous; among them, State v. Buchanan, 5 Harris and Johnson (Maryland), page 317, is an elaborate discussion of the question, covering fifty pages, and many authorities are cited. In this case; at page 333, the Court says: “Much reliance is placed on the statute of Edward I, de con-spiratoribus on the supposition that the offense of conspiracy was originally created by that statute.” The learned Judge then proceeds to' show, pages 333-351, that the offense of conspiracy existed prior to the passage of 33 Edward I, was passed in 1304, and on page 351 observes-: “By a course of decisions running through a space of more than four hundred years from the reign of Edward I to the 59th of George III, without a single conflicting adjudication, these points are clearly settled:

“1. That the offense of conspiracy is of common law origin, and not restricted or abridged by the statute 33 Edward I.

“2. That a conspiracy to do> any act that is criminal per se., is an indictable offense at common law, for which it can scarcely be necessary to offer any authority.”

In State v. Burnham, 15 New Hamp., 396, Gilchrist, J., speaking for the Court, says: “In the first place, we have no doubt that conspiracy is an indictable offense in this State. It is punishable at common law, its punishment is most repugnant to our institutions, and it is an offense productive of much injury, and as deserving reprehension under one .form of government as another.”

To the same effect are Commonwealth v. Hunt, 45 Mass., 111; State v. Pulle, 12 Minn., 164.

In the last case the defendants were indicted for a conspiracy to assault one James IT. Murray, to daub and put upon his naked body a great quantity of tar and feathers, and the point was made “that there is no statute in this State creating or defining the crime of conspiracy, nor is any punishment affixed by law to any such offense, and, therefore, this Court had no- jurisdiction thereof. The Supreme Court held on appeal that conspiracy not declared a crime by the statute law was punishable because of the common law.”

In United States v. McCord, 12 Fed. Rep., 159, it is said: “The statutes of the United States do not define what a conspiracy is, or create any new offense. They merely recognize the crime of conspiracy as known to the common law and the courts must go to- the common law to determine what it is.”

In 2 Bishop’s New Criminal Law, sec. 114, the statute of 33 Edward I is quoted in full, and the author adds, in subsection 2, the following:

“Since this statute contains no' negative word, a principle explained in another connection shows that it abrogates nothing* of the prior common law, but leaves indictable whatever of conspiracy was so before.”

In State v. Younger, 12 N. C., 357, this Court held that “a combination of two or more to do. any unlawful act, or one prejudicial to another, is indictable at common law as a conspiracy.” State v. Brady, 107 N. C., 822; State v. Powell, 121 N. C., 635; State v. Wilson, 121 N. C., 650.

The cases already, cited dispose of the other exceptions for refusal to quash. Some of the authorities cited by defend- . ants are no longer authorities, since The Code of 1883 added to section 1025 the second proviso thereof, that in indictments for false pretence, “it shall be sufficient in any indictment for obtaining, or attempting to obtain, any such property by false pretences, to allege that the party accused did the act with intent to defraud, without alleging an intent to' defraud any particular person, and without alleging any ownership of the chattel, money or valuable security; and, on the trial of any such indictment, it shall not be necessary to' prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act with intent to defraud.”

The third exception is as follows: “While the regular panel of jurors was, in the court-room, the defendants moved to separate the witnesses and to- exclude them from the courtroom while said jury was being selected and empaneled and during the trial of said cause. The Solicitor, objecting, said that the witness Paul Garrett would be the first witness examined, and the others would testify as to matters not in his knowledge, except the detection in Greensboro. Whereupon the Court remarked that it was a matter of discretion with the Court, and that all the witnesses, except the complaining witness, Garrett, and the high Sheriff of the county, might be excluded from the Court; but as to' these witnesses, their high character as citizens forbade the idea that either of them would be influenced by the testimony of the other.” It would indeed be sufficient to' say that it does not appear that any one of the jurors, who actually sat on the trial, heard the remark; but we prefer to put our ruling upon broader ground. By the common law, Judges -were not prohibited from expressing an opinion upon the facts, and this is still true of the Federal Courts and all the States in which there is no- statute making a change in this respect. In North Carolina, the only change is that made by the Act of 1196, now Code, see. 413, which leads as follows: “No Judge, in giving a charge to the -petit j ury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently provenThis is the extent of the statutory change. It goes m> further. In State v. Angel, 29 N. C., 27, Ruffin, C. J., says: “The Tacts’ on which the act (1796) restrains him (the Judge) from expressing an opinion to the jury are those respecting which the parties take issue or dispute, and on which, as having occurred or not occurred, the imputed liability of the defendants depends.” In State v. Laxton, 78 N. C., 564, Smith, C. J., says.: “It is quite obvious from the words of the act that its special object -was to prevent the intimation of such opinion in connection with and constituting a pari of the instructions by which the jury were to be governed, and when its influence on their minds would be direct and effective.” To. same purport in DeBerry v. Railroad, 100 N. C., 310; State v. Robertson, 86 N. C., 628; State v. Jones, 67 N. C., 285. These u-ere cases in which the remarks were made by the Judge during the progress of the trial, but it is not necessary that wo pass upon the question whether the remark here made by the Judge would be ground for setting aside the verdict if made during the progress of the trial, for it was not made at such time. At the time when made, no juror had been selected, and the remark was not “to the jury,” nor did it contain any opinion that “a fact was fully or sufficiently proven.” No fact had been shown in evidence. The remark was not prohibited at common law, and is certainly not prohibited by any terms in the statute. No decision of our Court has ever hinted that a statute forbidding the Judge “in a charge to- the petit jury” from “expressing an opinion whether a fact is fully or sufficiently proven,” extended to the re-^ marks of a Judge complimentary to one (who was afterwards examined as a witness) made before the jury was selected or empaneled. In every case where such a proposition has been presented, this Court has denied the application of the statute. State v. Jacobs, 106 N. C., 695; S. C., 107, N. C., 774; State v. Jackson, 112 N. C., 853.

The defendants except to the sentence imposed of imprisonment in the penitentiary, but concede that this Court has ruled otherwise in State v. Mallett, 125 N. C., 718, which we re-affirm.

The other exceptions were without merit and were not .seriously pressed in this Court.

Affirmed.

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Dissenting Opinion

Douglas, J.,

dissenting. In dissenting from tbe opinion of tbe Court, wbicb I am constrained to do, upon tbe highest considerations of private right and public policy, I feel much diffidence in expressing my own opinions, as tbey are so totally different from those of tbe Court. However, tbey are tbe result of my deliberate judgment, and as such must find expression, as I can not even silently concur in a decision, wbicb, to me, seems so dangerous in its tendencies, and so. devoid of legal basis in its conclusions.

I have no sympathy whatever for a gold-brick swindler, and but little for bis victim, who is usually caught in tbe trap, be thinks be has set for another. The ordinary business man has no earthly use for gold, except for, what it will bring in the market, and no object in buying it unless be can resell at a liiglper price. Therefore, be always expects to get it for less than its value from a supposed owner, who must be ignorant of its value. He knows, or should know, that gold is current tbe world over, and that- anyone having it can carry or send it to the^ nearest mint and obtain its full value in current coin. Usually tbe pretended miner professes to be very ignorant, or has a partner who is even more ignorant than himself, and whose interest may be bought out at a small sum.

In tbe case at bar the inducements offered Garrett appear to have been $35 per day and bis expenses, together with a “one-third interest in everything be bad,” including $36,000 in gold at Greensboro, $48,000 in gold in Arizona, and a gold mine capable of producing one million dollars a year. In consideration for such great wealth, Garrett was to give his services only; and yet, in bis suit for a total breach of this contract, be places Ms damages at tbe modest sum of $3,000. (Printed record, pages 15, 41, 47, 48.) Again, be says on page 42: “It was mighty pretty, and I thought possibly .there might he something in it. I may have been something of a phantom chaser in this transaction.” It would seem so.

There is nothing in this case that appeals to my sympathies, and hence I am free to view it in its legal aspect. I believe that the defendants are all guilty, but this will not induce mo to demy to them a single one of the rights which the law gives to them for their protection.. I do not believe that the sole purpose of the law is to punish the guilty. A higher object still is the protection of the innocent; but whether innocent or guilty, every citizen is entitled to a fair trial and the equal protection of the laws. As was said by this Court in State v. Keith, 63 N. C., 144: “These great principles axe inseparable from American government and follow the American flag. No political assemblage under American law, however it may be summoned, or by whatever name it may be called, can rightfully violate them, nor can any court sitting on American soil sanction their violation.” This case .finds its counterpart in the great case, Ex Parte Milligan, 4 Wall., 2, great in the Court that decided it, great in the counsel who argued it, great in the ability of its opinions, and greater still in the principle it settled. Milligan was, before the close of the war, tried nud convicted by a court-martial of conspiracy, followed by overt, acts, to seize the Federal arsenals and set free and arm the Confederate prisoners. It was. held by a unanimous court that he was entitled to a trial by jury, according to’the law of the land.

The opinion of the' Court uses the following language on page 18: “Had this tribunal the legal power and authority to tiw and punish this man ? No graver question was ever considered by this Court, nor one which more nearly concerns the rights of the whole people;, for it is the birthright of every American, citizen, when charged with crime., to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, theore is an immunity from punishment, no' matter how great an offender the individual may be, on hownmoh his eximes may have shocked the sense oí justice of the country, or endangered its safety. Ey the protection! of the la.w human rights are secured ; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.”

In this spirit I approach the case at bar. The defendants may be guilty and deserve their sentence, but to deny them a fair trial would be a wrong, not to them alone, but greater still to the integrity of the law in the preservation of which every citizen has the supremest interest.

To begin with, I am opposed to any further extension of the doctrine of conspiracies, which, in this State, has been already carried far beyond the danger line. The Court seems to. rely principally upon the cases of State v. Buchanan, 5 H. & J. (Md.), 317; State v. Brady, 107 N. C., 822, and State v. Younger, 12 N. C., 357. Buchanan’s case is regarded as one of the leading cases, and will probably continue to be so'regarded as long as Judges, impressed with its apparent learning, take for granted its citations. But I am free to say that the argument of the learned counsel for the. defendants ha's convinced me that that case is not only inherently vicious upon its face, but is founded upon a large array of miscitations and embellished with a vast amount of misinformation. For instance, that case holds “that an indictment will lie at common law for a conspiracy to do- an act not illegal, nor punishable if done by an individual, but immoral cnlv.” What limit is there to such a definition, and what is meant by the word “immoral ?” In. its widest sense it might mean any act, which, in the opinion of the Court, was contrary to private morality or revealed religion. Gan this be the law anywhere ? Certainly not in this State, unless made so by Brady’s, case, or that at bar. I do not think that Brady’s case goes that far in that direction; but on. another point it does go beyond any case within my knowledge;. Without any citation of authority, and by some process of reasoning incomprehensible to me, it holds that the Court below properly refused an instruction that, "though the represento lions might he false, if the defendants honestly entertained the opinion they were true, they would he not guiltyI can only say that such a ruling is, in my opinion, without foundation in law or justice, and I regret that it should be found in an opinion of this Court. It is true the Court says that the “Court properly refused them in the words asked,” but as the words themselves were unobjectionable, and the instruction does not appear to have been given in any words, the qualification of die Court merely emphasizes the refusal. •

The opinion of the Court before us cites Younger’s case as holding that “a combination of two or more to do> an unlawful act, or one prejudicial to another, is indictable at common law as a conspiracy.” This is in the syllabus, but not in the case. What the Court said was, “that every conspiracy to' injure individuals, or to do acts which are unlawful, or prejudicial to the community, is a conspiracy, and indictable.” There is an essential difference between being prejudicial to the community and only to an individual. In that case the offense was a conspiracy to cheat by gambling, which was in itself unlawful.

Younger’s case is moreover in direct conflict with the opinion of the Court as to the antiquity of the present doctrine of conspiracies, as in that case Chief Justice Taylor, perhaps more learned in the ancient common law than any Judge who has ever sat upon this bench, says that, “conspiracy was anciently confined to imposing by combination a falsa crime upon any person, or conspiring to' convict an innocent person, by perjury and a perversion of the law.”

But it may be said that the swindle which these parties contemplated was so clearly a crime that some of this discussion has no necessary application. Admitting that to be trae, I am now discussing tbe opinion of the Court. If it goes beyond the facts of this case, so must I. If it gives its unqualified approval to the cases of Buchanan and Brady, with all their inherent errors and vast possibilities of danger, then I must express my disapproval in terms equally plain; and if any unguarded words of mine may appear too> strong, I know my brethren will ascribe them to their true motive — the strength of my convictions. The opinions of this Court are not mere decisions of pending cases. If they were, mere per curiam judgments would suffice, at least in cases of affirmation. The real object of the opinion, as contra-distinguished from the judgment, is to lay down general principles as applied to a certain state of facts for the determination of all future cases of similar nature. The mere character of the defendant does not affect the principle. It is only a goldbrick man to-day, but who may it be to-morrow ? Among the ■general principles resulting from the opinion of the Court and the oases it specifically approves are the following: That an indictment for conspiracy will lie at common law, (1) “for a conspiracy to do an act not illegal, nor punishable if done by an individual, but immoral only;” (2) for “a combination of two or more to do any unlawful act, or one prejudicial to another,” individual; (3) that “though the representations (relied on to convict) might be false, if the defendants honestly entertained the opinion they were time, they would be * * guilty.”

From these propositions of law I emphatically dissent. My own views as to the dangers attending the expansion of the doctrine of conspiracies can not be better expressed than in the following words of Judge Campbell, in delivering the opinion, of the Court in People v. Barkelow, 37 Mich., 455: “There is no class of cases where defendants are better entitled to the protection of the law against vague charges than ■where they are charged with conspiracy. The course of legal experience lias shown this to have been a familial* resort to catch innocent persons by throwing a drag-net of vague charges, and resorting to suspicions and prejudices to induce juries to convict persons who find it impossible to' escape the malicious insinuations of false accusers. Titus Oates’-plot has been a warning to all courts and jurists, not to encourage any looseness in charges, which, in exciting times, juries and communities are only too ready to' catch a.t to punish those who are unfortunate enough to be suspected.” This opinion, concurred in, amongst others, by Judge Cooley, shows not only the great learning and clear comprehension of the present of those eminent jurists, but also their prophetic grasp of the possibilities of the. future. A few years latea* the English doctrine found its legitimate outcome in Regina v. Parnell, 14 Cox, 508, where the great Irish leader, with others, was indicted for a conspiracy to impoverish owners of 'land in Ireland by soliciting their tenants not to pay rent. Lord Fitzgerald in summing up the case to the jury said that it was plain and clear that an agreement of two' or inore persons to commit any wrongful act was an indictable offense. “If,” said he, “a tenant withholds his rent, that is a violation of the right of the landlord to receive it; but it would not be a criminal act in the tenant, though it would be in the violation of a right; but if two oi* more incite him to do that act, their agreement so to’ incite him is, by the law of the land, an offense.” Is not this equivalent to saying that a bare agreement of two persons to break a simple contract, or to induce another one to do so, is a crime ? I do not suppose that anyone will deny that the indictment of Parnell was purely for political reasons; and if the English rule prevails in this. State; what is thea’e to prevent the indictment of tiro members of our usual labor organizations ?

I am further of the opinion that the first count in the indictment, on which alone the defendants were tried, is not sufficient either to put them upon their guard or to furnish the basis for the future defence of former conviction, or acquittal. Again the English mile is invoked, but there a bill of particulars is granted practically as a matter of course. The Court in its opinion cites section 25'9 of The Code, to the effect that “the Court may in all cases order a bill of particulars of the claim of either party to be furnished.” If this section applies to criminal actions, which I doubt, it can not help this case, because the Judge refused, the request. Whatever might have been, the effect of a bill of particulars, if it had been furnished, surely the refusal of the Court to grant it can not validate an indictment insufficient in itself.

But again, the Court says that the Solicitor for the State need not have elected between the counts, but he did elect, and nol prossed all but the first count. Those counts are, therefore, as much out of the indictment as if they had never' been in it. But the opinion says that the second and third counts gave the defendants tire information they desired'. Can it be that a defendant is required to go to a bill of indictment that has been nol prossed to find out the meaning of the bill on which he is tried ? I am aware of the line of decisions that it is not necessary to set out the particular means by which the cheating was to be accomplished, that is, the indictment need not state each particular act or false pretense upon which the State relied, because this would be impracticable; but it must set out enough to constitute a crime, and to identify that particular crime with reasonable certainty. Suppose an indictment were to charge simply that John Smith .did, in the year 1900, in the county of Wake, attempt to steal from William Jones, would anyone suppose that Smith could be convicted ? Again, suppose that Smith was indicted for attempting to bum a barn in the year 1900, and in the county o'f Wake, could be tried for attempting to burn any or all of the numerous bams in Wake County that may have been in existence during the year 1900, or any other year within the legal radius thereof ? But, forsooth, if Smith is indicted for conspiracy to bum some indefinite barn, without burning, or attempting to burn, agy bam whatever, then nothing more need be said. If such is the law, then I am ignorant of the law.

There are several errors which, for want of time, I must pass over, or notice only in the briefest possible manner.

I think the admission in evidence against Hawley of the car'd bearing his name was fatal error. This card was found in Howard’s possession after his arrest. There is no¡ evidence that it was ever in Hawley’s possession and no. suggestion that it is in his handwriting. When shown to him he denied all knowledge of it. It might as well have born© the name of any prominent citizen of Greensboro or State official. Would it then have been evidence against anyone ? If not, why should it have been evidence against Hawley ? The majesty of the law is such that the loftiest are within its reach and the lowliest within its protection.

Passing over other points, I come now to two errors, similar in nature, but occurring at different stages of the trial, either one of which is sufficient to entitle the defendants to a new trial, and the combination of which renders it morally impossible that they should have had such a trial as they are entitled to by “the law of the land.”

The record shows that after the case had been called for trial and the defendants had pleaded not guilty, and while the regular panel of jurors was in the court-room, the defendants moved to separate the witnesses and to' exclude them from the court-room while said jury was being selected and empaneled and during the trial of said cause. The Solicitor objecting, said that the witness Paul Garrett would be the first witness examined, and the others would testify as to matters not in his knowledge, except the detection in Greensboro. Whereupon the Court remarked, “that it was a matter of discretion with the Court, and that all the witnesses, except the complaining witness, Garrett, and the high Sheriff of the county, might be excluded from the Court; but as to' these witnesses, their high character as citizens forbade the idea that- either of them would be influenced by the testimony of the othersI”

This remarkable statement of fact by his Honor was made in the presence of the jury, after the case had been called for trial, and in passing upon a motion in the action. It was not necessary, as he could have refused the motion in his discretion without giving any reason, or he might have given the reason suggested by the Solicitor, which, would have been harmless. His testimony to the high character of Garrett could not have been stronger, even if he had been a witness; and can we suppose that the jury would not be influenced by such a statement coming from the Judge as to thei character of a witness.personally unknown to them ? Taken in connection with his subsequent charge — and the jury must have connected the two — its practical effect was to withdraw from their consideration the credibility of a witness whose testimony was absolutely essential to the prosecution. The opinion suggests that the jury may not have heard the remark. Such a suggestion comes from the Court alone. The evident gist of the exception is that the remarks were made in the presence of the jury and were calculated to influence them. The Attorney-General, in his able brief for the State, says: “It is conceded by the defendants in their third assignment of'error, page 311, that These remarks of his Honor were made before the jury was passed upon by either the State or defendants, but when the regular panel was present in the court-room in the jury box/ " The italics are mine. He never for a moment suggests that they were beyond the hearing of the Court, but proceeds to argue that the defendants’ remedy was to “have taken steps looking to tire elimination of such jurors as might have been affected by the remarks of his Honor.”

The opinion refers to the English rule permitting Judges to express an opinion upon the facts, .but this rule has long ceased to prevail in this country. Even where it still lingers, it is coupled 'with the obligation upon tire Judge to instruct the jury that they are not bound by his opinion of the facts. The general rule is thus clearly stated in 11 Enc. PI. & Prac., 97: “As stated in a preceding section, the practice in most States forbids any expression of opinion ns to the weight and sufficiency of the evidence; and the rule, as will be subsequently shown, is most stringently enforced. Not infrequently Judges evinced partisanship in their charges, and moulded verdicts i» their will; and juries as frequently shirked responsibility, and really adopted the opinion of the Judge, finding their verdict as he directed. It was to- put a stop to this, and to secure the constitutional right of trial by a jury, and not by a Judge, that tire various limitations upon this common law power were imposed by the Constitution or by statutes. The trend of modern action, both legislative and judicial, is to watch over and protect very jealously the legitimate powers of the jury, and to prevent the Court from overstepping the line which separates law from fact. 'Trial Judges can not legally indicate their opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of the witnesses, or as to tire truth of any fact at issue, and the subject of the evidence.’ ” In support of this rule five or six hundred cases are cited, of which twenty are from this State. The common law rule was expressly abrogated in this State by th<3 Act of 1796, now Code, sec. 413, which reads as follows : “No' Judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury.” From the first, this statute has been uniformly given a liberal interpretation ini order to carry out its essential principles; but now, for the first time, this Court proposes to overrule the settled policy of a hundred years, and adhere to the exact letter of the law. This necessarily involves overruling numerous decided oases, amongst others those of Reel v. Reel, 9 N. C., 63; State v. Dick, 60 N. C., 440; Willey v. Gatling, 70 N. C., 410; MacRae v. Lawrence, 75 N. C., 289; Crutchfield v. Railroad, 76 N. C., 320; State v. Dancy, 78 N. C., 437; State v. Jenkins, 85 N. C., 544.

There are numerous other cases enunciating the same principle, but I have cited those only in which a. new trial was granted. In all of these eases a new trial was ordered, although none of them came within the letter of the statute, inasmuch as the Judge did not “give an opinion whether a fact is fully or sufficiently proven.” In some of them he was not even addressing the jury, as in Dick’s case. In that case this Court says: “On the trial a question arose as to the withdrawal of certain confessions of the prisoner. The Court declined withdrawing them, but remarked to the Solicitor for the State that after the other evidence already given in the cause, he (the Solicitor) might withdraw them if he chose to do so, which the Solicitor declined. This seems to us an expression of opinion on the part of the Judge, that the case was sufficiently proved 'without the aid of the confessions. This is not directly asserted, but is a matter of inference plainly from the manner in which the expedient of withdrawing the testimony is suggested.” * * * “The object” (of the statute) “is not to inform the jury of their province, but to guard them against any invasion of it. The division of our courts of record into two departments, the one for the judging of the law, the other for judging of the facts, is a matter lying on the surface of our judicature, and is known to everybody. It was not information on this subject the Legislature intended to furnish; but their purpose was to' lay down an inflexible rule of practice — that the Judge of the law should not undertake to decide the facts. If he can not do so directly, he can not indirectly; if not explicitly, he can not by innuendo. * * * This, we suppose, has been to maintain undisturbed and inviolate that popular arbiter of rights, the trial by jury, which was without some such provision constantly in danger' from the will of tire J udge acting upon men mostly passive in their natures, and disposed to shift off responsibility; and in danger also from the ever active principle that power is always stealing from the many to the few.”

The Court has said in State v. Davis, 15 N. C., 612, speaking by Gaston, J.: “It is obvious that if we confine ourselves to the words of this statute- (Act of 1796), there is- no ground for the complaint which we are now considering. But it has been long since settled that the literal is not the true interpretation of the act. Solicitous to discover and faithfully to carry into- execution the legislative will, this Court has fixed its intention upon the purposes declared in the act, and has given to' it such a construction as, it believed, would most effectually accomplish these purposes-. * * * But if in doing all this, he (the Judge) intimates his- individual opinion as to the existence or non-existence of a controverted fact, on which side of the controversy he believes the truth to be, or which of the witnesses he regards as having the higher claims to respect for his accuracy and probity, he' overleaps the boundary of duty and invades the peculiar and exclusive province of the jury.”

This Court has said in State v. Jones, 67 N. C., 285: “This (the statute) has been held to’ mean that the Judge shall state the evidence fairly and impartially, and that he shall express no opinion on the weight of the evidence. This construction, in the last particular, goes beyond the words of the act, but it is accepted as a proper one.”

In State v. Dixon, 75 N. C., 275, tbis Courtbas said: “This statute is but in affirmance of the Constitution, Art. I, secs. 13-17; and well settled principles of the common law as set forth in Magna Charta. The jury must not only unanimously concur in the verdict, but must be left free to act according to the dictates of their own judgment. Thei final decision upon the facts rests with them, and any inference by the Court tending to> influence them into a verdict against their convictions is irregular and without the warrant of law.”

In Crutchfield v. Railroad, 76 N. C., 320, this Court .granted.a venire de novo because the Judge below in his charge to the jury said that, “It was not denied but that Dr. Bahnsen was a gentleman of unquestionably high character in his profession and that he appeared to be a gentleman of culture.” In that case the Court says, on page 324: “Nor does it matter if his Honor was (if he was) speaking of another part of Dr. Bahnsen’s testimony when he put his estimate upon him as a physician of high character and a gentleman of culture. That was the mark put upon the man, and it attached to every part of his testimony. A Judge ought not to state to the jury his estimate of a witness, or how he appears to him.”

In MacRae v. Lawrence, 75 N. C., 289, a new trial was granted by this Court because the Judge below, referring to two witnesses, whose testimony was conflicting, charged the jury, “that both the witnesses were gentlemen, and that it was a pure matter of memory.” This Court, holding that such an expression was fatal error, says: “Again, one of two witnesses, where they differ, may be corrupt. And the party against whom his evidence is, may so insist before the jury, and his Honor can not tell the jury that he is not corrupt, bid that he is a ‘gentleman.’ ” If it is fatal error for the Court to tell the jury that the principal -witnesses on each side axe both gentlemen, how much greater error is it for the Judge to single out the prosecuting witness alone, and say that he is a gentleman of such high character that his veracity must not be questioned.

But it is said that this remark was made before the jury was empaneled. With all due respect for the Court, this seems to me the purest technicality. If it is not haerens in coriice, it is because it does not reach the inner barb.

It is true the jury had not been empaneled, but the case had been called for trial, and the regular venire was in the jury box. The remark was not a mere “passing compliment,” but a statement of fact upon which his Honor based his ruling on a motion in the action itself. It did all the harm it could have done if it had been in the charge, and is clearly in violation of the act which this Court has repeatedly said in substance conf ers no new right, but is simply in affirmance of the Constitution of this State and the principles laid down in Magna Charta.

And yet, it is proposed to overrule so many cases, and establish so dangerous a precedent, upon an immaterial ruling in Jacob’s case sustained by a mere dictum in Jackson’s. Let us examine those cases. When Jacob’s case was here in the 107th Reports, no allusion whatever* was made to the point before us. When the case was first here, 106 N. C., 695, the Court says: “It is difficult to see how the remark of the Judge (that he had been, informed by the jailer that he apprehended that Jacobs would escape if he had the opportunity) violated any provision of this statute. No juror had been selected; the remark was not in the presence of the jury, nor did it contain any opinion that ‘a fact was fully or sufficiently proved.’ No facts had been shown in evidence. Indeed, had the jury been empaneled, the statute prohibited the Judge ‘from expressing an opinion only upon those facts re-speeting wbdcb the parties take issue or dispute, and on which, as having'occurred or not occurred, the imputed liability of the defendant depends.’ ” If the remark was not made in the presence of the jury, and would not have been improper, even if the jury had been empaneled, what difference did it make whether the jury was empaneled or not?

In Jackson's case, 112 N. C., 851, the objectionable remark was made, not by the Judge, but only by a bystander; and yet the opinion proceeds to say that “remarks made by the Judge on such motions do not com© within the prohibition of the statute.” (Citing State v. Jacobs.) As the Judge had made no remark whatever, this was a pure dictum. And yet these two are the only cases which are even claimed to furnish any authority for the position of the Court.

I come now to the last exceptions that I shall discuss. These two exceptions are addressed to the following portion of his Honor’s charge: “Keference has been made by counsel for the defence to the testimony of the witness Garrett and his course in connection with the apprehension and arrest of the defendants in connection with this charge, and has been made the subject of comment and criticism. The Court, therefore, takes occasion to say that if the evidence, as disclosed by the testimony of Garrett, satisfies you that he acted in the matter either for the purpose of detecting the defendants, having suspected them of an intention, to' cheat and defraud him, or if he acted under the belief that the representations and inducements held out to him were honest and true, and that in consequence of either of these beliefs he came to' Greensboro to ascertain the truth of such impressions, then, he acted within the provisions of the law, and Ms course is not the proper subject of criticism, or adverse comment. The Court in tills, connection charges, you that there is no evidence that in any way connects him with the defendants in any charge of conspiracy to- violate the law. If he comes to detect and apprehend the defendants in the commission of an intended crime, his course is not only proper, but is commendable. If he came under the impression that the business transaction was a legitimate and honest one, by means of which he would be able to' acquire legitimate and honest profit, then he had a right to come for such purpose, and it would not be a subject of criticism.”

Ilis Honor apparently proceeded upon the assumption that there were only two possible constructions to place upon Gar’ rett’s conduct, either that his purpose was to detect crime, or to' engage in a legitimate business enterprise, one of which was proper' and the other commendable. No other hypothesis seems ton have entered his Honor’s mind, or to' have been left to' the jury. Taken in connection with his previous ruling as to Garrett’s high character, what was left for the jury except to convict ? If they believed Garrett, they must find at least two of the defendant’s- guilty, Howard and D'aley. Without Garrett, they could find no one guilty. The defendants did not introduce any testimony, but relied upon their legal presumption of innocence. If they could impeach Garrett they would be acquitted, and this they attempted to do> by a rigid cross-examination. Whether they succeeded was for tire jury alone to say, without any intimation whatever from his Honor as to' the weight of the evidence, or the credibility of the witnesses. The parts of Garrett’s testimony relied upon by the defendants for his impeachment are thus set out in their brief: Garrett, a man of wealth, is- approached by defendant Howard and has laid before him a proposition to' take him into' partnership in a gold mine, with immediate compensation fojr a time at $25 per day and expenses, and incidentally the probable purchase by him (Garrett) of some $12,000 worth of gold. (Record 22, 23, 24-.) Howard at this interview exhibited a large roll of bills (Record 39) and paid Garrett $10 on account. (Record 25.) Garrett accepted this- money and' Howard left thei office, having appointed a rendezvous two days later at Greensboro. Garrett testified that at this interview he made up bis mind Howard was a confidence man (Eecord 42), and as the latter crossed the street on leaving G arrett’s office, Garrett pointed him out to> two* of his employees, with the remark, ‘If you want to see a genuine gold-brick man, look out of the window, quick.’ (Eecord 18.) His faith in Howard was so. small that he even suspected the $10 bill paid him to be counterfeit (Eecord 18).' What then was the duty of Garrett when his. mind first •reached the conclusion that Howard was a confidence man, a ‘gold-brick man.’ Clearly it was to order him out of his office with a threat to. denounce him to the authorities. He might well have gone farther. He; might have informed tire Sheriff or the police of his interview and of his suspicions, leaving to them the duty of dealing with Howard and the others. What he did was to put himself into communication with the Chief of Police at Eichmond, Va.; he wrote a long letter to Patterson, accompanying it with a letter of introduction of Mims from Lewis (Eecord 25). All this was to lay an elaborate plan to apprehend the defendants, for whom, by tilie way, he believed there was a reward outstanding of $20,-000 (Eecord 45). He then gave his letter’s to Mims, and so solicitous was he that there should he no failure of justice, and, incidentally, that lie should not fail of the reward, that be gave Mims $20 or $25 for expenses (Eecord 45). Thus his arrangement for arrest having been completed, lie set about enticing defendants into, a completion of the supposed objects of the conspiracy. He had previously, at his first interview with. Howard, so far” fallen in with Howard’s, plans as to make two. drafts of a telegram, one to. use if the Indian were amenable, the other in the event he were not (Eecord IT). On. the second day after the interview with Howard, Garrett proceeded to Greensboro to keep tbe appointment. On arrival be saw Mims and Patterson, to whom for thirty minutes he talked ‘pretty plainly/ and was told that the Sheriff had the matter in charge (Kecord 26, 28). There, also, h.e met Howard, and after he counted Howard’s money for him (Record 26), the two drove out in a buggy to. the place where the Indian was camped (Kecord 29, 30). On this drive, Howard showed signs, of backing out, but Garrett urged him on — not once, but several times. The Sheriff and Patterson passed them on the road. Howard thought they looked suspicious, but Garrett, mindful of his civic duty and the reward and the roll of bills he had just counted, ridiculed the notion. The Sheriff and Patterson were ‘just two fellows that had been down town and got drunk.’ Again, Garrett said, ‘The next time you stop I am going to take the horse and buggy and‘go back to' town’ (Kecord 31). When they arrived at the Indian’s camp, Garrett suggested that Howard tell the Indian that he, Garrett, was Andrew Garrett’s brother. ‘You tell him I’m Andrew Garrett’s brother’ (Kecord 33). The alleged gold bars were then produced, and just as the weighing was. completed the officer’s closed in and arrested Howard and Haley (Kecord 35). This successfully completed the first half of Garrett’s plan. In Com. v. Shea, 9 Phil., 569, which was a case where certain parties, induced a saloon-keeper to sell them beer in violation of the Sunday liquor law for the purpose of informing on him, Judge Paxson said: ‘Eor the relators it was urged that they were engaged in a lawful object, to-wit, the enforcement of the Sunday liquor law. * ■* * It was never intended that a man should violate the law in order to' vindicate the law.’ *' * * Immediately after the returning from the scene of arrest, Garrent went to. the office of King & Kimball, attorneys at law, and retained them to appear in tire criminal prosecution; and also, being still mindful of his civic duty, to prosecute a cival suit for $2,000 against these defendants for an alleged breach of .contract (Eecord 48, 49). In aid of this suit he caused an attachment to be levied on the clothes, trunks, jewelry and other personal effects (Eecord 49, 76, 77), including the roll of bills displayed by Howard at their first interview, and which he had kindly counted for Howard at Greensboro just before the arrest. Having secured everything in sight, even to their changes of underwear, this good citizen leaves the State of North Carolina to pay the expenses of defendants in this suit by compelling them to defend in forma pauperorum

Upon this review of the testimony of the prosecuting witness as relied upon by the defendants, it seems to me clear that his Honor committed fatal error in his charge, and that a new* trial should be granted.

I have given much attention to this case, more than my official duties would justly allow', and much more than the defendants apparently deserve; but I am firmly convinced that there is nothing more dangerous than to attempt to- stretch established principles to meet the supposed exigencies of particular cases. I can not do better than close this opinion with the words of Chief Justice Chase in the concurring opinion in Ex Parte Milligan, 4 Wall., 2, 132, as follows: “The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment- may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this Court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in .order to- inflict even upon the guilty, unauthorized though merited justice.”

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Dissenting Opinion

Eueches, G. J.,

dissenting. Without affirming all that is said by my brother Douglas in the elaborate and learned discussion in his dissenting- opinion, I can not say that I am satisfied that the defendants have had a fair trial. In my opinion there is error, at least, in what the Judge said as Garrett’s high character on the motion to separate the witnesses, and in what he said near the close of his charge to' the jury, that Garrett’s conduct was not a proper subject for unfriendly comment.

In my opinion there Should be a new trial.

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Concurrence Opinion

MONTGOMERY, J.,

concurs in the conclusion reached by the Court. He thinks, however, that what his Honor said on the trial below, in declaring that two of the State’s witnesses were of so high a personal character as that he would not ask them to leave the court-room, on a motion for the separation of the witnesses, and also, what he said in his instructions to the jury in defending one of the same witnesses against the adverse criticisms of the defendant’s counsel on the witness’s testimony, was inappropriate and indiscreet. The language of the statute on the subject may not have been violated, but its spirit certainly was.

Case Details

Case Name: State v. Howard

Court Name: Supreme Court of North Carolina

Date Published: Dec 3, 1901

Citation: 129 N.C. 584

Court Abbreviation: N.C.