State v. Palmore

Apr 22, 1925
Versions:189 N.C. 538
127 S.E. 599
1925 N.C. LEXIS 348
ClakKSON, J.

From a careful inspection of the record, examination of the briefs and hearing the arguments, we can discover no error whatever in the record except the charge as appears of record in regard to reasonable doubt and set forth in the motion of the Attorney-General. The case in the court below was tried by a learned and painstaking judge. The Attorney-General in the brief says: “This jury, beyond any doubt, it seems to us, could not have been misled by this patently erroneous statement of his Honor in such way as to affect their finding in the particular case. If the burden is upon the State (and this is probably true) to show that no harm could have come from this error, we think that the considerations suggested herein show that this defendant was not harmed by this error.”

In State v. Starling, 51 N. C., 367, Pearson, C. J., approves the charge of Shepherd, J., ini the court below: “Reasonable doubt, in the humanity of our law, is exercised for a prisoner’s sake, that he may be acquitted if his case will allow it. It is never applied for his condemnation.” Speas v. Bank, 188 N. C., 528.

In the interest of humanity, except in certain cases changed by statute, the accused is entitled to an instruction that the prosecution must prove the charge against him beyond a reasonable doubt. In material or civil matters, ordinarily the rule is different — by preponderance or greater weight of the evidence. Reasonable doubt is defined in State v. Schoolfield, 184 N. C., 723. The rule of reasonable doubt has come down to us from ages past and is firmly established in this jurisdiction. It is a substantial right. Hunt v. Eure, ante, 482. There was error in the charge as appears from the record.

Should the motion of the Attorney-General be allowed? We cannot so hold. Precedent and orderly practice and procedure is ordinarily the life and light of the law; without it we would have chaos. It may, in some cases, work a hardship, as in this case, to the State, but adherence to the fixed rules is necessary in the administration of law.

The solicitor, under our Constitution, has to prosecute on behalf of the State in all criminal actions in the Superior Court and advise the *542 officers of justice in bis district. He is tbe most responsible officer of tbe court. State v. McAfee, ante, 320.

Tbe record shows that tbe defendant prepared and tendered bis case in tbe time allowed by law to tbe solicitor, and be signed tbe following: “Service of tbe foregoing defendant’s, appellants, statement of case on appeal is hereby accepted and tbe receipt of a copy thereof is hereby acknowledged. . . . Tbe foregoing is hereby approved as tbe statement of case on appeal.”

Tbe record imports verity. Tbe solicitor must pass on “case on appeal” for the State, State v. Cameron, 121 N. C., 573, and this Court is bound by tbe case passed upon, State v. Wilson, 121 N. C., 650. Tbe judge cannot authorize tbe case on appeal to be served upon any other than tbe solicitor or counsel acting for him. State v. Stevens, 152 N. C., 840. When appellant’s case is served in time,' and no exception or eountercase served, it is “the case.” State v. Carlton, 107 N. C., 956.

Practically this very matter has been recently passed upon in State v. Humphrey, 186 N. C., 533. In that case tbe defendant in apt time served on tbe solicitor tbe case on appeal. Tbe solicitor after tbe statutory period filed a countercase. Tbe judge undertook to settle tbe ease on appeal and directed that tbe same be filed as tbe case, etc. Tbe appellant’s case on appeal with tbe record proper was certified to tbe Supreme Court and duly docketed for bearing. At tbe call of tbe cause in this Court tbe Attorney-General suggested a diminution of tbe record and moved that tbe case served by tbe court be docketed as the only correct and proper case on appeal. Motion disallowed, and cause beard and determined on case as tendered and served by appellant. In the Humphrey case, supra, Hoke, J., in a clear and concise opinion, sets forth tbe statutes and authorities, and a repetition here is unnecessary.

There must be a

New trial.