State v. Duncan, 28 N.C. 236, 6 Ired. 236 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 236, 6 Ired. 236

THE STATE vs. BENJAMIN DUNCAN.

Qfl tho trial of one indicted as accessary in tho crime of murder, a transcript pf tho record of the conviction of the principal was received in evidence, ?t appearing in the transcript that after the conviction of tho principal he appealed to the Supreme Court, from which the oaso was sent back to the Superior Court, but the decision of tho Supreme Court not appearing in the transcript. Held, that notwithstanding this omission, and though the decision should properly have been entered on the record, yet tho transcript was good evidence against the accessary, for at most the judgment against the principal was only-erroneous.

An accessary cannot take advantage of error in the record against tho principal, and the attainder of the principal, while unroversed, is prima facie evidence against the accessary of the principal’s guilt.

Evidence on tho part of a prisoner, indicted as an accessary in murder, that he was a man of yiplent passions and often in the habit of using threatening language, intended to febnt the presumption arising from his threats against tho deceased, is irrelevant and inadmissible.

Threats of other persons against the deceased, or admissions by them that they had killed him, are only hearsay and cannot be received in evidence.

The Court, to which, on the removal of a cause, the transcript of record is sent, is the sole judge whether the transcript is properly verified by the seal of the Court from which it is sent, and all other Courts are bound by its decision-

The words vi et armis in an indictment are now superfluous, and more especially so in au indictment against an accessary, as his offence tends only to a breach of the peace, and is pot, of itself, an actual breach of it.

The cases of State v. May, 4 Dey. 328, and Slate v. Moses, 2 Dev. 452, pited and approved.

Appeal from the Superior Court of Law of Davie County, at tlie Spring Term, 1846, his Honor Judge Caldwell presiding.

This was an indictment against the defendant for being an accessory before the fact to the murder of William W. Peden. Qn this indictment, the defendant was tried and convicted, and sentence of death being passed, he appealed to this Court. The following are the facts upon which the points presented to this Court arose :

One Underwood was indicted in the Superior Court of Wilkes for the murder of one Peden, and the prisoner, Duncan, was charged in tho same indictment as accessary to the fact. At their instance the trial was removed to Iredell; and, on separate trials there, they were convicted and sentenced to be hanged, and each appealed. At December term, 1845, it was decided by this Court that the judgment against Underwood was not erroneous, and ordered that the decision should be certified to the Superior Court of Iredell, to the intent that the said Court should proceed to judgment and sentence accordingly. At the same term the judgment against Duncan was held to be erroneous and reversed ; and a venire de novo was awarded; and the usual certificate of that decision was also directed. Those cases may be found reported in 6 Iredell, 96 and 98. At the succeeding term of Iredell Court as stated in the record “ the said James Underwood being brought to the bar, and being asked if he hath any thing to say, why sentence of death should, not be pronounced upon him, and replying thereto that he hath not, the Court doth thereupon, in obedience to the judgment and mandate of the Supreme Court to the Court directed,’-' &c. proceeding then in the usual form of a sentence of death. There was then a venire de novo awarded as to Duncan ; and he obtained an order for the second removal of his trial to Davie. He was again convicted, and, after sentence thereon he appealed to this Court.

On the trial, there was offered in evidence, on behali of the State, a transcript of the record of the Court of Iredell in the cash of Underwood, in order to shew his conviction and the judgment. It was objected to for the prisoner, because it did not appear therein, what decision the Supreme Court had made upon the appeal; and it was insisted, that it should appear in the record, or at least be made to appear by the ordér from the Supreme Court. On the part of the State the certificate from the Supreme Court to the Court of Iredell was then produced and read; and the Court then allowed the transcript from Iredell to be read also.

On the part of the State it was proved, amongst other things, that the prisoner had threatened to kill Peden, or

cause him to be killed. Thereupon the prisoner oficred to prove, that it was his habit when in a passion, to use violent and threatening language towards others: which, being objected to on the part of the State, the Court refused.

The prisoner offered further to prove, that certain other persons harbored ill-will against Peden and had threatened him; and also that certain others had been suspected and arrested upon a charge of having murdered him® This evidence was also rejected.

Attorney General for the State.

Wo Counsel in this Court for the defendant.

Ruffin, C. J.

The Court is of opinion, that the transcript from Iredell was proper evidence of the judgment on Underwood, as principal in the felony. It would have been right to set out in the record, as finally made up, the certificate from this Court as having been sent by the Clerk of this Court or brought in by the Solicitor. But to the purpose for which it was offered, we think the record sufficient, as it is. It is true, that, after an appeal to this Court, any subsequent proceedings in the Superior Court cannot be regarded by this Court, when the case is before us as between the parties directly affected by those proceedings, by the appeal of one of them. But as the subject matter in this case, namely ? a charge of murder against Underwood, was within the jurisdiction of the Superior Court, the ultimate judgment of that Court, not reversed nor vacated by appeal, it would seem, could not be impeached collaterally by another person, upon the ground that it did not appear that the cause, after the appeal from the first judgment, had not been remitted, and so was coram. non judice. But however that may be, the record here shews, informally it may be admitted, that the Court in passing sentence, professed to act in obedience to the dc-cisión of the Supreme Court on the appeal before taken by the prisoner, which the law, Rev. St. c. 33, s. 6, directs shall be certified to the Superior Court, and thereupon requires the Superior Court to proceed to judgment and sentence agreeably to the decision of the Supreme Court and the laws of the State. We cannot understand less from this, than that a decision of the Supreme Court had been certified to the Superior Court, which made it the duty of the latter Court to proceed in the case in some manner, though it does not directly appear in what particular manner. The cause cannot therefore be deemed to be coram non judice; but, at worst, it is- erroneous merely, to pass sentence of death without setting out at large the decision of the Supreme Court, as the authority for the judgment. If, however, it bo admitted to' be erroneous in that point, yet it will net avail this prisoner ; for it seems to have been long agreed, that the accessory cannot take advantage of error in the record against the principal, and that the attainder of the principal, while unreversed, is prima facie evidence against the accessary of the principal’s guilt. l Hale P. C. 625, 2 Hawk. c. 29, s. 40.

The other points of evidence were, in our opinion, - properly decided also. The evidence of the violence ©f the prisoner’s passions and language, would rather operate against. than for him, as shewing a malignity of heart. At best, it was irrelevant, and could profit the prisoner nothing.

The threats of other persons against Peden, or admissions by them that they had killed him, were but hearsay j and, moreover, could not tend to establish, that Underwood and Duncan were not also guilty as charged. State v. May, 4 Dev. 328. Of the same character are the suspicions entertained by some people, that other persons had committed or been concerned in the murder. Those matters were certainly consistent with the guilt of those parties, and could therefore serve no purpose but to. mislead the jury.

There was then a motion in arrest of judgment. One ground was, that the transcript from Iredell (on which the trial was had in Davie,) did not shew the seal of the Court of Wilkes affixed to that part of it, which purported to set forth the transcript brought into the Court of Iredell from the Court of Wilkes. But it is manifest that the statement of the transcript from Wilkes, in the record of Iredell, as enrolled in Iredell, purports to be but a copy, 'and therefore could not have the impression of the seal of Wilkes. To the Judge of the Court in Iredell, it belonged to determine, as a matter of fact, whether the transcript purporting to come from Wilkes, was verified by the seal of that Court, and really came from it. Having been received as a transcript from Wilkes, and enrolled as such in making up the record in Iredell, it was conclusive in the Court of Davie, that the transcript,' which purported to come from the Court of Wilkes, actually came from it.

Another ground is, that the indictment does not lay the offence vi et arviis. In point of fact, that part of the indictment, which charges the assault and killing by Underwood, lays them vi et armis; but in charging Duncan as accessary in the conclusion of the Court, it finds that he “ feloniously, wickedly, wilfully, and of his malice aforethought, did incite, move, procure, aid. counsel, hire and command the said James Underwood,” áte., omitting Si force and arms.” And this, we think, is sufficient, I® is agreeable to the nature of the offence charged on the-prisoner ; which is not a crime of which force is a constituent, but merely that of inducing another person to commit such a crime. However it might be at common law or in England, under the statute of Hen. 8, our Act, Rev. St. c. 35, s. 12, must be deemed to dispense with those terms. As was said in the State v. Moses, 2 Dev. 452, the Legislature meant that it should be sufficient for the indictment directly to aver the facts and circumstances, which constitute the crime, and that is done here in the words, that the prisoner “feloniously procured, hired,’* &c. Underwood to kill and murder Peden. In the case just cited, it was considered, that vi et armis et baculis were but words of form, now rendered superfluous; and in reference to an indictment against an accessary they are plainly so, inasmuch as his offence tends only to a breach of the peace, and is not, of itself, an actual breach of it. Hawk. B. 2, c. 25, s. 90. Rex v. Busks, 7 T. R. 4.

There is, therefore, no error in the record; and this must be certified accordingly.

Pee Cueiaiw. Ordered to be certified accordingly.