State v. Upton, 12 N.C. 268, 1 Dev. 268 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 268, 1 Dev. 268

The State v. Jesse Upton,

From Davidson.

■Where a case is so defectively stated, as not to enable the Court to perceive the paints intended to be presented, a new trial will De awarded.

The prisoner was indicted for the murder of his wife, and tried before his honor Judge Daniel, on the Fall Circuit of 1826. The following is a coy of that part of the record .sent to this Court which is necessary to the elucidation of the case.

“ The Court refused to permit the prisoner to give evidence of the declarations of his wife, not in the presence of her husband, and before her death, made to different persons, and at different times, that the Defendant was deranged, or subject to periodical derangement.”

“ The State enquired of a witness whether the wife of the Defendant had not come to him and requested him to go to her house, and after they got there, the Court permitted the charge, she made in the presence of the Do Cendant to be given in evidence, and his denial of the charge, but refused the declarations of the wife made to ^he w¡tnesg> at the witness’s house, when she first went for him, when the husband was not present.”

The Jury having returned a verdict for the State, and a rule for » new trial being discharged, the prisoner appealed.

Nash, for the prisoner, contended,

that the case was so defective, that the Court could not see the points intended to be presented for consideration. He cited Den deni, of Hatton v, Dew, (1 Law Rep. 524) Cowan v. Green (3 Murpli. 569) Gilkey v. Dickerson, (2 Hawks 241).

The Attorney-General, contra.

Taylor, Chief-Justice.

T do not know upon what principle the declarations of the wife, made at the witness’s house, are admissible in evidence. They could be so only on the ground of their being dying declarations ; but it no where appears from the case, that she bad then received the fatal wound. Independently of this ground, which cannot be assumed, her sayings touching the insanity of her husband, are not proper evidence, whether they were favorable, or otherwise to him. If material to the defence, it should be shewn by other evidence.

But this case is made up so unsatisfactorily, that it is difficult to collect from it what we are called upon to decide. For this reason alone, I am disposed to grant a new trial.

Per Curiam. — Judgment reversed, and rule for a new trial made absolute.