State v. Dove, 32 N.C. 469, 10 Ired. 469 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 469, 10 Ired. 469

THE STATE vs. JACOB DOVE.

On the trial of au indictment for murder, where it is alleged for error that the Court improperly over-ruled a challenge of the prisoner to one of the jurors, the record must shew for what cause the challenge was made; otherwise the Supreme Court cannot say, whether there was error or not.

Where a juror, upon being challenged, swears that he has formed and expressed an opinion, but only upon rumor, but that he could do impartial justice, upon hearing the evidence in the case ; grima facie the juror is competent; though in some cases the Court or the triers may find otherwise.

Where a witness is impeached on the ground of bad character, evidence may he given of previous statements made by the witness, consistent with hig testimony on the trial.

Although an impeaching witness may be examined as to the general moral character of the witness impeached, and also as to his character for truth when on oath, and when noton oath, it is not necessary to put these ques« tions in any particular order.

The cases of the State v. Benton, 2 Dev. &. Bat. 196, State v. Ellington, 7 Ire. 61, State v. George, 8 Ire. 324, and State v. Boswell, 2 Dev. 269, ■ cited and approved.

Appeal from the Superior Court of Law of Rowan County, at the Fall Terra 1849, his Honor Judge Oai®-WJ3T.L presiding.

The prisoner was indicted for murder. The case stated in the record is as follows: “In forming the jury, two persons wore offered as jurors' and challenged for cause : On being asked, whether they had formed and expressed the opinion, that the prisoner was guilty, they answered, they had — whereupon they were asked by the Court, upon what ground they had formed that opinion, and they answered, that it was formed from report. They' were then asked by the Court, whether their opinion was so fixed and made up in their mind, that they could not do impartial justice between the prisoner and tbe látate ; and each replied, that it was not so fixed and made up as to prevent his doing justice between the prisoner and the State : They were then ordered to be tendered to the prisoner, and he challenged them peremptorily, and in like manner he challenged thirty-three others before a jury was formed.”

One Stairns was examined as a witness for the State, and he testified to the facts of the murder and other cir comstances. Evidence was given on the part of the prisoner, impeaching the general character of Stairns. On the part of tbe State evidence was then offered, that, on the evening after tbe homicide and the next morning, he, Stairns, gave the same statement of the facts, as that he gave on the trial; and the Court received the evidence, after objection for the prisoner.

On the part of the prisoner it was then proposed further to prove, that Stairns was a man of bad moral character and reputed to be dishonest; and, in order todo so. the counsel for the prisoner asked a witness (who had said that he knew the general character of Stairns) “what was his character for honesty and thereupon the presiding Judge stated to the counsel, that’ he understood the Supreme Court to have ruled, that an impeaching witness, after stating his knowledge of the general character of the first witness, must then be examined, as to his general character for truth when on oath, and when not on oath, and then as to his general character for honesty and morals, and his Honor required the counsel to put all those questions to the witness, but allowed him to do so in such order as he should choose. But the counsel declined to enquire as to the character of Stairns for truth when on oath, and therefore refused to examine the witness further.

The prisoner was convicted, and after sentence hé appealed.

Attorney General, for the State.

Boyden, for the defendant.

Ruefin, C. J.

Strictly speaking, a venire de novo could not be awarded on the point respecting the jurors, had the decision on it been erroneous, inasmuch as the prisoner’s exception does not state, that the challenge was made by him, nor assign any cause for if. In Benton’s case, 2 Dev. & Bat. 196, although the juror said, he had made up and expressed an opinion as to the guilt or innocence of the prisoner, and although there was every inference, that it was unfavorable to the prisoner, from the fact that the prisoner, as here, afterwards challenged him peremptorily, yet the Court was obliged to affirm the judgment, because it did not appear affirmatively that the opinion was adverse to the prisoner. As it stood indifferent upon the record, whether the opinion was for or against the prisoner, and as only that party can challenge, for the cause of an opinion formed and expressed, against whom such opinion is, the Court could not say there, was error in over-ruling the challenge, as that of the prisoner founded on that opinion, as the cause. So, here, if it be admitted, that the prisoner had cause of challenge, for that the j urors had formed and expressed the opinion, that he was guilty, yet if he did not challenge the jurors, or did not challenge them for that cause, he cannot complain, that the Court did not on his behalf set them aside. In drawing exceptions counsel ought to recollect, that this Court cannot presume pleadings nor infer objections on the side of the appellant more than of the appellee, and that the onus is on the appellant to show that there was error: and, therefore, that every fact was directly stated, on-which the party relies to establish or exhibit the error. The exception ought to have set forth a narrative of the transaction as it occurred, by saying that the prisoner ■challenged the juror, and then setting forth the cause he assigned. As it is, there is no legal intendment of any particular cause, as the record merely states, that it was ‘•for cause;” and, as none is stated, it is impossible for the ■Court to determine, whether that assigned was or was ■not sufficient in law.

But if the Court could supply that defect by supposing that the prisoner was the challenging party, and that his cause of challenge was, that the jurors had from rumor made up and expressed an opinion against him, the Court would still hold, as the cause is stated, that the Superior Court did not err in again tendering the juror to the prisoner. As was said in Ellington’s case, 7 Ire. 61, such an opinion, formed from rumor — if opinion it can be called —would seem in its nature to be but hypothetical ; that is,.resting upon the supposition, that the facts should turn out to be on proof according to the rumor. Hence, when the juror is further asked, whether, if the proof should fail to show the truth to be as the matter had been reported against the prisoner, or show it to be different, his impression or opinion would in that case prevent him from doing impartial- justice according to the evidence, the anstver is a natural one for every man, who has honesty and sense enough to try anything, that he had no such opinion as could influence his mind to give a verdict contrary to or without evidence. Under such circumstances the juror must be deemed prima facie to be ill-different, and therefore we must suppose his Honor held him to be so in point of fact. We will not say, that upon some minds common fame may not make such impressions, that triers or the Judge might find the person net to be indifferent. That would depend much on their estimate of his intelligence, temper, candor and general impartiality. But when he swears, that his mind is in an impartial state, and that it was never otherwise but-upon rumors merely, and that he would not act on them independent of the evidence, there is, prima facie, we think,, no just ground of exception to him as a juror.

In the State v. George, 8 Ire. 324, a previous statement,, consistent with the testimony of a witness given on the trial, was deemed competent in support of his credit, when, attacked by evidence that he had made inconsistent statements. It is argued, that it is different here, because the witness was impeached by evidence of bad character.. But the force of such a distinction is not perceived. The evidence in question is, in its nature, but a feeble support of the credibility of the witness. But such as it is, it seems to be as good proof, that the testimony of the witness is true, when his veracity is attacked upon the score of bad character, as upon that of having told different tales about the matter.

Upon the other question of evidence, we suppose his. Honor attended to the directions, which appeared to have been given by the presiding Judge as to the mode of examining witnesses to general character, in Boswell’s case, 2 Dev. 209. The judgment was affirmed in this Court; but it cannot be collected from the opinion of the Court, that it was deemed necessary or proper in every case to pursue the order of examination there set forth, or even that those questions should all be put in every ease in any order. But certainly they are very proper questions in themselves, and they may always be put by the on© party'or the other, and generally will be so put. Although the prisoner may not, perhaps, have been bound to go through that series of interrogatories, so as to make him ascertain, how far the witness was addicted to all the vices in the catalogue, but he might have come at ©nee to that or those he meant to impute to the witness, yet it is not perceived that the prisoner received or could have received any prejudice, by reason that the whole examination would be conducted by his counsel. Since all the questions might be asked or were proper to be asked by the one or the other, it seems totally immaterial on which side they were propounded; and therefore no harm could have arisen to the prisoner from the course adopted, and the Court has no right to disturb the verdict.

Per Curiam.

Ordered to bo certified accordingly.