State v. Williams

185 N.C. 643 | N.C. | 1923

WalKer, J.,

after stating the facts: This ease was carefully tried, and the rulings during the course of the trial were well considered and made with strict regard to law and procedure.

The charge of the court was very full, learned, and explicit, and was perfectly fair and just to all the defendants, being, if anything, rather more favorable to them than they had any reason to expect. The jurors, if they heeded it, which they seem to have done, could not possibly have mistaken its meaning and significance. The contentions of the respective sides were very fully arrayed, nothing material or of importance being omitted therefrom. The law of the case was explained to the jury with great care and correctness, and the statute fully complied with in this respect.

Upon the evidence, including the dying declarations of the deceased, the jury convicted all of the defendants of first degree murder, that is, Williams and the two Doves, Hardison having been before convicted of the same crime.

Upon exceptions reserved by the defendants they appealed to this Court, and now ask us to review the entire record, so far as indicated by the specific exceptions, which we will now proceed to do.

It will be timely and appropriate at this stage of the opinion to repeat with some degree of fullness what the learned judge stated to the jury, in his charge, with reference to the dying declaration of Cyrus Jones, as the competency of what is called “his dying declaration” should be finally settled before proceeding further to discuss the case in the light of the evidence. It is as follows: “There has been admitted in evidence, gentlemen of the jury, testimony tending to show statements made by Captain Jones, which the State contends were made in the fear of his impending death. The law of North Carolina is that such statements are admissible upon the ground of public policy, one reason being that the victim and the perpetrators of the crime are often the only persons present, and our Court holds that such testimony does not violate the bill of rights, which gives every man the right to confront his accuser, and I instruct you that the rule is that the declarant must have been dead at the time declarations were given in evidence, and that the declarant, at the time he made the declaration, must have been in danger of impending death, and that he must have been in full apprehension of such danger. It is alleged and admitted that Captain Jones was mortally wounded on 5 August and died on 9 August. The State contends that a short time after he was wounded he was in actual danger of death, and that he was in full apprehension of such danger, and that he declared there was no chance for him, and that those responsible for his condition were Collins, Williams, and the Doves. And I instruct you, gentlemen, that you are the judges of the weight you will give to such statement and the credibility you will give the witnesses who testified to it. I further instruct you that it is your duty to receive the statement with care— carefully, but not superstitiously, remembering there was no cross-examination at the time it was made by the deceased.” The allusion to the dying declaration could not have been better expressed or stated, and is but one illustration among the several of the intelligent manner in which the cause was considered and tried. The criticisms of the defendants’ learned counsel are entirely inadequate to any successful challenge of the correctness of the learned judge’s charge as to the dying declaration. They are founded upon pure conjecture as to the probable state of Jones’ mind at the time it was made, and as to his semi-consciousness, and his being plied with leading questions, if he made any response to them at all, thus being led easily to his conclusions of fact relating to the circumstances of the assault upon him by the prisoners.

Eeviewing the various exceptions taken to the judge’s rulings and to his charge, we find none of them that is at all tenable. It would be idle and useless to discuss them seriatim, as each and every one of them is manifestly without any solid or genuine merit, and yet we do not feel that in so important a case, involving the lives of three men, and possibly four, we should fail to make some more specific reference to them than we have already done. We will therefore consider the prisoners’ exceptions with some more particularity, though not taking them up one by one.

Counsel for the defendants move the Court for a new trial on the ground of newly discovered evidence, because of the fact that one of the witnesses has changed his story of the crime since the trial. If there is any particular virtue in the changed statement of the witness, it should -be addressed to the executive and not to the judicial branch of the Government. However, counsel for the defendants take advantage of the opportunity afforded in a motion for a new trial to present to the Supreme Court, in the form of an affidavit, his version of the whole matter, including the conduct of the court, the conduct of counsel appearing with the solicitor, and the conduct of those in attendance upon the trial. The Assistant Attorney-General directs our attention to the fact, which he affirms and relies on, that some of the statements set out in the affidavits filed with the motion for a new trial, because of after discovered evidence, are new and heard for the first time when this motion for a new trial was entered. It is a well settled proposition of law that this Court will not grant a new trial in criminal cases for newly discovered evidence, to say nothing of reversed evidence. The latest decision reaffirming this doctrine is in S. v. Jenkins, 182 N. C., 818. This Court said in that case, by Adams, J.: “When the case was called for argument the defendant’s counsel filed a motion for a new trial upon the ground of newly discovered evidence. The motion must be denied. In numerous decisions this Court has held that a new trial will not be awarded in a criminal action for newly-discovered evidence; and in S. v. Lilliston, 141 N. C., 857, the Chief Justice said: ‘So that point is settled, if the uniform practice of this Court and its repeated and uniform decisions to the same effect can settle anything.’ S. v. Register, 133 N. C., 747; S. v. Turner, 143 N. C., 641; S. v. Ice Co., 166 N. C., 403.” And upon the question of nonsuit, or as to whether there was any evidence to convict, the Court further said: “An issue of fact was thus joined between the State and the defendant, and the court properly submitted to the jury the question of the defendant’s guilt. In S. v. Carlson, 171 N. C., 823, it is said: ‘The motion to nonsuit requires that we should ascertain merely whether there is evidence to sustain the allegations in the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury.’ ”

Exception one, defendants abandon. Exceptions two, three, four, six, seven, and eight relate to the challenge of jurors for cause by the defendants, for that each of said jurors challenged had served upon the jury within the past two years. This special venire was drawn from the jury box with all the formalities of drawing a regular jury, and were summoned by the sheriff. C. S., 2326, provides that where the name of a juror is drawn from the box, it shall not be ground for challenge that he-has served on the jury within two years prior to the court at which the case is tried, and all the decisions of this Court are to the effect that it is no cause for challenge that a special venireman had served upon tbe jury within two years. S. v. Carland, 90 N. C., 668; S. v. Whitfield, 92 N. C., 831; S. v. Kilgore, 93 N. C., 533; S. v. Starnes, 94 N. C., 973.

In tbe fourth exception, wben tbe juror Frazelle was challenged for cause on tbe ground that be bad served on tbe jury witbin tbe past two years, and this cause for challenge was disallowed, counsel for tbe defendants undertook to peremptorily challenge this juror without being required to make it known in open court, so that tbe other jurors would not be affected or prejudiced by tbe challenge, if made openly and in their bearing. Tbe court promptly, and properly, we think, stated to tbe counsel that if be would challenge tbe juror peremptorily, it must be done in open court, and it would be allowed, but 'that if counsel did not see fit to make tbe challenge openly, it would not be allowed. Tbe disagreement between counsel for the defendants and tbe presiding judge as to what happened is, of course, settled by the finding of tbe court as to what it was which we have stated.

Exceptions nine, ten, eleven, twelve, fourteen, fifteen, sixteen, seventeen, and eighteen are grouped in defendants’ brief as relating to dying declarations. The only objection raised by the defendants in their argument is that the statement of the deceased should not have been received, for that they are very close on the line of demarcation, and that the deceased was speaking, perhaps, unconsciously, and, undoubtedly, responding to leading questions, if he made any responses at all, but the evidence seems to be to the contrary. the deceased bad driven bis car a mile and a half back to Swansboro, and, before be was taken from bis car, be told the witness Midgett that be was beaten all to pieces; that there was no chance for him to live, and that Collins, Williams, and Doves were the responsible parties. There was no evidence that be lapsed into unconsciousness until later on in the night, after which be made no 'statements whatever. the statements of the deceased as to who shot him come directly under the rules laid down by this Court for the admission of dying declarations. S. v. Peace, 46 N. C., 251; S. v. Whitt, 113 N. C., 718; S. v. Quick, 150 N. C., 820.

The thirteenth exception is complained of on the ground that it is hearsay, but there the witness Midgett was only stating to the witness Freeman what the deceased bad said to him, and, if hearsay, it is absolutely immaterial and harmless, because it is merely a repetition of what the witness Midgett bad just testified to.

Exceptions 19, 20, 21, 22, 23, 24, 25, and 26, taken to the charge of the court, are grouped in the brief of the defendants and based on the ground that they form expressions of opinion. the judge, more than once in bis charge to the jury, tells them that be has no opinion on the facts, and the exceptions above enumerated are taken to the contentions of the State, as given by the court in charging the jury. If the contentions as given by the court were incorrect, and they do not appear so to have been, the counsel for the defendants should have objected at the time, in order to have given the court an opportunity to correct any misstatement of the contentions of the State, if, perchance, he had made any misstatement of the same. All the decisions of this Court are to the-effect that when the trial judge is stating the contentions of a party to-the jury, the opposite party must object at the time, if they would avail, themselves of the objection in this Court, and if the party fails to object at the time, the objection is waived. S. v. Kincaid, 183 N. C., 709; S. v. Montgomery, 183 N. C., 747; S. v. Winder, 183 N. C., 777; S. v. Sheffield, 183 N. C., 783; S. v. Baldwin, 184 N. C., 789.

The defendants could not have been harmed by the statement of the-court that it was alleged, and not denied, that Cyrus Jones was dead, because the evidence of witness after witness was to the effect that he died on Wednesday night, 9 August, and never was any suggestion made-by the defendants that he was not dead. Hence, the judge was merely stating a contention of the State, which was uncontradicted by the defendants; and if error at all, it was certainly harmless, and this Court does not concern itself with harmless errors. Hulse v. Brantley, 110 N. C., 134; Alexander v. Trust Co., 155 N. C., 124.

Exceptions 27, 28, and 29 seem to be abandoned by the defendants in their brief, and well might they he abandoned because in the court’s charge, to which these exceptions are noted, his Honor tracked the law, as repeatedly laid down by this Court, to the very letter.

S. v. Whitson, 111 N. C., 695, answers the 28th exception, and S. v. Baldwin, 152 N. C., 828, the 29th and 30th exceptions. In the last named case, Justice Hoke, writing the opinion of the Court, says: “Malice may arise from personal ill-will or grudge, but it may also be-said to exist (in a legal sense) wherever there has been a wrongful or intentional killing of another, without lawful excuse or mitigating circumstances.” This is implied or le^al malice.

Exception 31: As to this exception, the court was undertaking to-define how malice may be shown, and again the court followed the rules-of this Court in defining malice. S. v. McDowell, 145 N. C., 563; S. v. Cameron, 166 N. C., 379.

Exception 32: This exception seems to be abandoned by the defendants in their brief, and properly so.

Exception 33: In this exception defendants complain for that the court did not go far enough and sufficiently qualify the charge given. This is exactly what the court did do, for, after telling the jury that they should receive the testimony of the defendants and their relatives with caution and scrutiny, the judge uses this language: “If, after such scrutiny, you are satisfied tbey are telling tbe' truth, it will tben be your duty to give it as much credit as you give tbe testimony of a disinterested witness.”

Exception 34: This exception is properly abandoned.

Exception 35: Here again tbe defendants complain, for. tbe first time, about tbe judge stating tbe contentions of tbe State. If, in stating these contentions, be erred, which it seems be did not do, tbe objection should have been made at tbe time, but none was made. S. v. Kincaid, supra.

Exceptions 36 and 37 are abandoned by tbe defendants, and rightly so.

Exception 38: Here the defendants complain that bis Honor erred in failing to tell the jury that the defendants must have been present at the time of the killing, in order to make them guilty of murder in the first degree. If any error here, we think that it was cured by the language of the court used immediately before the language excepted to. Immediately before this exception the court said, “If you find from the evidence, and beyond a reasonable doubt, that the shot which killed Cyrus Jones was fired by Willie Hardison, in furtherance of a plan and design on his part, with malice and with premeditation and deliberation, and that the defendants, or either of them, were (when the fatal shot was fired), then and there present, aiding, encouraging and abetting him, it will be your duty to convict them, or such of them as you find so present, guilty of murder in thé first degree.”

Exceptions 39 to 46, inclusive, are abandoned by tbe defendants.

Exception 47: This exception relates to the refusal of bis Honor to tell the jury that it was dangerous to convict exclusively on the unsupported testimony of an accomplice. the refusal of the court was on the ground that it was covered in the general charge, and this relates to exceptions 47 and 48. In bis Honor’s general charge to the jury, be said: “the jury may convict upon the unsupported testimony of an accomplice, though it is dangerous and unsafe to do so, but if the testimony of the accomplice, taken with other facts and circumstances in the case, carries conviction to the minds of the jury, then it is their duty to convict, remembering that the jury must be satisfied beyond a, reasonable doubt of the guilt of the defendants before they can convict.” What more could be have said, or bow better could be have said it ?

Exception 49 : Here the court gave the instructions asked for by the defendants, and they now complain that be added thereto a correct statement of the law, contending in effect that the trial judge was unfair in correctly stating the law, because everybody knew the defendants were innocent. Counsel for the defendants in this exception, while complaining of the court, seem to lose sight of the fact that the State has some rights as well as the defendants, which should be safeguarded.

Exception 50 and 51: In exception 50 the defendants asked for certain instructions to the jury, and bis Honor gave these instructions as set out in exception 51, stripped of surplus verbiage, the language of the court includes everything asked for by the defendants except that it was stated more succinctly and pointedly.

Exception 52: This prayer for instruction was covered in the general charge. His Honor charged the jury at some length on the caution and scrutiny that they should apply to the testimony of interested witnesses.

Exception 53: This prayer for instruction was declined on the ground that it was given in the general charge, but the defendants say they fail to find it in the general charge. But it is there, as will appear in the charge, as set out on page 86 of the record, next to the last paragraph on that page, and is included within the 28th exception of the defendants, which they abandoned in their brief, and is in language as follows: “I further charge you that it is your duty to receive the statements (dying declarations) with care — carefully, but not superstitiously, remembering there was no cross-examination at the time they were made by the deceased.”

It appears that the judge not only fully covered tbe requests of tbe defendants in his general charge to the jury, but that he correctly stated the law, and conformed, at least substantially, to the language of this Court as used in S. v. Whitson, 111 N. C., 695.

Exception 54: This exception is purely formal, and taken to his Honor’s refusal to set aside the verdict, and needs no more special reference.

The defendants seem to complain here, and for the first time, that they did not get a fair trial. They seem to believe that the whole case would have been changed and the verdict would have been different if a man by the name of Ramp - Jones had not escorted the prisoner, Willie- Hardi-son, from the jail to the court room. The counsel contends that Hardi-son was under the influence of Jones. "While the suggestion is absolutely new, and is heard here for the first time, we call attention to the fact that if they had any ground for it defendants should have complained to the trial judge, and requested proper instructions, whereas no complaint was made, and, so far as the record discloses, the defendants discovered for the first time, after the verdict, that they had not had a fair trial, for the reason indicated.

In the affidavit introduced for the defendants Frank and Fred Hove, and filed in this Court, on the motion for a new trial, they set out the fact that an attorney visited Willie Hardison while he was confined in the jail of Craven County, and interviewed him with reference to what took place at the killing; that Hardison told him, on that occasion, that his clients, Fred and Frank Dove, and the defendant George Williams were all present and assisted in tbe killing of tbe deceased. Tbe witness Hardison could not baye been under tbe influence of Ramp Jones at tbat time. Tbe witness Hardison only repeated upon tbe witness stand statements be bad previously made wben. under tbe influence of nobody, and bis testimony in tbe trial of these defendants was given after be bimself bad been tried and convicted of murder in tbe first degree. Tbe Assistant Attorney-General, Mr. Nasb (wbo always presents tbe State’s cases, in an exceedingly able, accurate, and most satisfactory manner), contends tbat it is simply preposterous to advance tbe theory, at this late day, tbat tbe testimony of tbe witnesses would have been different, if tbe witness Hardison bad been conducted to and from' tbe jail by another deputy sheriff, and tbat tbe verdict would also have been reversed. And it does not (at least sufficiently) appear tbat there would have been any such change in tbe testimony or tbe verdict.

The evidence as to the dying declarations of Cyrus Jones having been admitted, it is only necessary to state that it was clearly competent evidence, because at the time the most essential part of it,- and also a separate and independent part, was let in, the declarant bad stated that be would certainly die, or used equivalent language, if not stronger language, when be said “there was no chance for him” to live, that be bad been beaten to death. The judge, therefore, properly ruled in the declaration, although the declarant may afterwards have changed bis mind and believed that the doctors might save him. It is evident, though, that Gyrus Jones, at the time when be declared as to the facts and circumstances of the homicide, bad abandoned all hope, and that be spoke under the solemnity and in the very presence of impending death, which supplies the usual tests, as to the truth of what be stated, that is, an oath and opportunity of cross-examination by the party against whom bis declarations are used.The evidence as to the dying declarations of Cyrus Jones having been admitted, it is only necessary to state that it was clearly competent evidence, because at the time the most essential part of it,- and also a separate and independent part, was let in, the declarant bad stated that be would certainly die, or used equivalent language, if not stronger language, when be said “there was no chance for him” to live, that be bad been beaten to death. The judge, therefore, properly ruled in the declaration, although the declarant may afterwards have changed bis mind and believed that the doctors might save him. It is evident, though, that Gyrus Jones, at the time when be declared as to the facts and circumstances of the homicide, bad abandoned all hope, and that be spoke under the solemnity and in the very presence of impending death, which supplies the usual tests, as to the truth of what be stated, that is, an oath and opportunity of cross-examination by the party against whom bis declarations are used.

There was some suggestion in the argument tbat defendants could not be convicted of murder, as principals, in the first degree, nor as principals in the second degree, as aiders and abettors. This contention was based upon the supposition, clearly not allowable, tbat the evidence showed tbat 'Willie Hardison was the principal, and tbat the defendants were only accessories before the fact, having beforehand merely advised or counseled the commission of the homicide by him, and not having participated in the actual commission of it, as being present, aiding and abetting, Willie Hardison, the principal. But this position is manifestly without sufficient support in the evidence, when carefully considered, and the learned presiding judge correctly instructed the jury in regard to it. If the State’s evidence is credible, and this was for the jury, Hardison and the defendants were all guilty as principals, as they, with premeditation and deliberation, killed and murdered the deceased in a most cruel and heartless manner, and upon not only a slight, but a frivolous pretext.

It was suggested, but only so, that perhaps Hárdison, inspired by a yearning desire to save his own life, testified falsely as to the others, but this is met by what was said by Cyrus Jones, in his dying declarations, and is fully and completely contradicted by it. If he (Jones) told the truth — and he had every reason to tell the truth by reason of his serious situation at the time, and the truth of his words are confirmed by the solemn realization of impending death — there can be no doubt as to the guilt of the prisoner. But any consideration such as suggested by the prisoners is for the jury in impeachment of the State’s evidence, or is a matter which should be addressed to the pardoning power and not to us, as we must be governed by the facts as the jury have found them.

There are practically sixty exceptions in this case, many of them of grave importance, requiring full consideration and discussion, and we have, in one way or another, adverted, at least, to those which could not be ignored, and were decisive of the case. It extended'the opinion of the court far beyond ordinary limits, but this could not possibly be avoided if the case was given proper and adequate treatment, and is to be fully justified when not only the unusual importance of the case, and the gravity of the questions raised, are taken into account, and also the seriousness of the result, when four lives must be surrendered in the vindication of the law.

We do not recall any other contention of the prisoners that would' either excuse, mitigate, or extenuate their crime, and upon a most careful perusal of the whole record, we are satisfied that none such exists.

The prisoners have been tried before an able and learned judge, by a jury fairly and impartially selected according to law, and there is no ground, or even plausible pretext, upon which we can base a reversal or modification of the judgment.

No error.