27 N.C. 58 | N.C. | 1844
The court is of opinion, that neither of the gróunds in relation to the jury is sufficient* to authorize a ve-nire de novo.
' We think it would have been proper to have kept the jurors of the original panel, separate from those of the special venire. It was so held in Benton’s case, 2 Dev. and Bat. 196. It is true that in that case, there were' seventeen of the original panel attending, so that a jury might have been formed without
The court made no erroneous decision with respect to the juror Ridge. What the court did as to him was proper; that is, to direct him to stand by and wait the decision upon the challenge of him until the panel, to which he belonged, had been gone through. -That challenge never was decided. But he was not called back for a decision, merely from a mistake of the clerk as to the point of fact, that the juror was excused for the reason he was a witness, by consent of both sides.— Hence that officer declared as a fact, that the panel had been perused, although the court had not passed on this juror, and the prisoner and his council, with a full knowledge of the truth of the case, acquiesced in that statement, and, upon the basis that the panel had been perused, and all the jurors had been accepted, challenged or excused, made no objection to
The short adjournment of the court for necessary refreshment, and the separation of some of the jurors from the body of the jury upon the occasions and for the very short periods mentioned, do not vitiate the trial. Kimbrough’s Case, 2 Dev. 431. Miller’s Case, 1 Dev. and Bat. 500. Indeed, there does not seem to be the least ground of suspicion, that the verdict could have been influenced by any thing that occurred while the jurors were out of the presence of the court.
The counsel for the prisoner took an exception to parts of the charge to the jury; to the proper understanding of which, it is necessary to state parts of the evidence. The house, that was broken, was situated in Davidson County, and belonged to two men named Newsom and Spence, and was used by them as a shop for the sale of merchandize, and also a dwelling house. The prisoner was a house-carpenter, and resided in Randolph county, and was engaged in building a house there, at the distance of about thirty miles from the house of New-som and Spence. On Monday the 8th of May, the prisoner was in the shop, had some dealings with Newsom, and paid him three one dollar bills, which he saw Newsom put into the till. The house was broken open on the night of Sunday the 14th May. The entrance was effected by boring a hole in the shutter of a window in the shop, with an inch and a half auger, so as to take out a piece large enough to admit the hand, and then the key of an iron cross bar was removed on the inside, and the window opened. The appearance of the holes shewed that they were bored with a peculiar auger, called an Edding auger, of which none were known in that neighborhood, and that this auger had a gap in it. There were stolen from the till, the sum of ten or twelve dollars in small silver coins, three one dollar bank bills, and a South Carolina due-bill for fifty cents.
On Monday morning, the 15th of May, the prisoner was seen about sun-rise, about a mile and a half from the store, going in the direction from the store to his residence. He was walking very fast and dodged, when he saw the witness, though at some distance off, and the witness did not perceive that he was carrying any thing. At 12 o’clock of the same day, he was seen by another person going in the same direction, fifteen miles from the shop. He had his'coat off and car-' ried on his arm, and this witness, also, did not perceive that he was carrying any thing else.
During the week following, the' prisoner passed to a person' three one dollar bills and a South Carolina bill for fifty cents, which Newsom identified as those that were stolen from the shop. On Monday the 22nd of May, he also passed to another person, ten dollars in silver change, only one piece of which was as large as twenty cents, the rest being mostly dimes' and half dimes. Of these coins, the owners identified two of the dimes, with particular marks, one half dime and one piece of twelve and a half cents.
On Monday the 22nd of May, the prisoner was arrested at the house on which he was working, and there was found among his tools, an Edding auger, of the same dimensions with that with which the holes in the window shutter were bored, and with a gap in it, corresponding with the impressions from the gap in the window shutter. A person, who worked with the prisoner said, that while the prisoner was absent, he had not missed the auger, though his attention had not been directed to it.
The counsel for the prisoner, in the course of his defence, contended there was not sufficient evidence that he committed the burglary ; and, particularly, that the possession of the stolen money was not sufficient evidence, because, from the lapse of time between the burglary and the prisoner’s being seen
His Honor, in summing Up to the jury, stated to them, among other things,- that the prisoner had not been seen in possession of the money so recently after it was stolen, as of itself legally to raise a presumption, that he had stolen the money, or consequently, broken the house. There was opportunity in the interval, for some other person to have passed it to him"; and therefore he ought not to be convicted of breaking the house on that evidence. But the court further observed to the jury, that the possession of the money was nevertheless a circumstance to be considered by them, with other circumstances, tending to shew, that the prisoner was the person who broke the house ? and if the whole evidence satisfied them that' he did,- then they ought to find him guilty: And that it was a material circumstance for their consideration, ill connexion with the prisoner’s possession of the stolen money, that it consisted of a considerable number, and various kinds of coin, besides several bills of paper money, and that all of it was in the prisoner’s possession, or had been passed by him, as enabling the jury to estimate the degree of probability, that the prisoner had himself taken it, or, on the contrary, that some one else had stolen it, and passed the whole sum to him in the very pieces that were taken. And, in reference to the point disputed between the counsel, whether the prisoner had his auger with him on Monday morning, the court told the jury, that they must judge how the fact was, from the circumstances. On the side of the prisoner, there were the circumstances, that the workman, with whom the prisoner was employed, had not missed the auger, while the
The court further informed the jury, that they were the exclusive judges of the credit of the witnesses, and of the weight of the circumstances ; and that the court presented the subject in different points of view to aid them in their deliberations, and without any intention to intimate an opinion as to the facts; and that the various suggestions submitted to them were to receive from the jury only that consideration, to which, in the opinion of the jury, they were entitled.
Though the exception to his Honor’s summing up has not been argued by counsel for the prisoner here, yet, as in every other case of the like serious consequence, we have given it our deliberate attention. We regret that we have not had the views of counsel, because, after full consideration, we are at a loss to conjecture what the objection can be. The judge intimated no opinion as to the facts. The very argument for the prisoner assumed, that there had been a burglary committed, and the money stolen by some person. Therefore, in noticing that point to the jury, his Honor did not err in taking those facts for granted. The only question was, whether the prisoner or some other person was guilty. And to that question, the circumstances, to which the attention of the jury was called, and the various aspects in which they might be regarded, were relevant and pertinent. The probability certainly is greater, that a possessor of stolen property was the thief, if many small articles, and especially of coin were stolen, and
Per Curiam, It must be certified that there is no error in the judgment below.