Summary
In S. v. Harwood, 60 N.C. 226, the motion in arrest was that the record failed to show the indictment was found a "true bill" by the grand jury.
Summary of this case from State v. McBroomOpinion
(June Term, 1864.)
It is no valid objection to the record of an indictment and conviction thereon in a capital case that the record does not set out that the grand jury found the indictment to be a "true bill," nor that the witnesses upon whose testimony the indictment was found were sworn before they were sent to the grand jury.
THE prisoner was indicted in WAKE, and the case was removed to JOHNSTON, where it was tried at Spring Term, 1864, before Health, J.
The transcript of the record from the Superior Court of Wake sets out the holding of the Superior Court on the first Monday after the fourth Monday of September, A.D. 1862, the return of the venire by the sheriff, and the names of the jurors, and proceeds in these words: "And thereupon, by the oath of Thomas Whitaker, foreman, John Adams, etc., good and lawful men of the county aforesaid, then and there drawn from the said venire and then and there impaneled, sworn, and charged to inquire for the State of and concerning all crimes and offenses committed within the body of the said county, it is presented in manner and form following, that is to say, the jurors for the State, upon their oath, present that John Harwood, late of Wake County," etc., charging him in the usual from with the murder of John C. Kennedy, and the transcript sets out his arraignment and plea of not guilty.
On his trial one Patrick, a witness for the State, swore that on the day of the homicide, 12 December, 1861, Kennedy, the deceased, and Harwood, the prisoner, were at his house in the county of Wake. The deceased and the prisoner drank together several times and seemed perfectly friendly; both started out of the house, prisoner going (227) first and the deceased following him in about a minute and a half. The prisoner went down the steps and passed to the corner of the piazza and stopped. The deceased went down the steps, and about the time he might have got to the lower portion of the steps, the prisoner, who had his gun in his hand, raised his gun, put his eye to it and fired quickly, and the deceased fell from the steps. The prisoner said nothing before he fired. The witness could distinctly see the prisoner all the time, but could not see deceased after he fell. The witness went out of the house and found deceased on the ground shot in the breast; he lived but a few moments. The witness asked the prisoner why he killed Kennedy (the deceased). The prisoner made no answer, and left in four or five minutes after the killing.
Miss Patrick, a witness for the State, swore she was present at her father's house on the day of the homicide. She saw the prisoner standing at the corner of the piazza with his gun, and heard him say to the deceased, "If you put your foot in this yard, I will put this load in you." He then fired. The deceased made no answer to the prisoner's threat, and she saw no more of the prisoner that day. She saw no arms in possession of the deceased. On Cross-examination, this witness swore that prisoner came out of the house in a hurry with his gun on his arm. Deceased came out slowly. Prisoner (who is a Texas man) had been at her father's for some time previous to the homicide, but witness neither saw nor heard any disturbance, nor anything unfriendly between them. In passing out of the house and towards the eastern end of the piazza the prisoner was going towards home.
Mrs. Patrick, also a witness for the State, swore that she was the wife of the first witness, and was at the house on the day of the homicide, and saw the transaction through a glass window in the kitchen; (228) deceased went out of the house first, and prisoner passed him with his gun on his arm; as prisoner passed out he said to deceased, "If you come out I will shoot you"; he then shot deceased, who fell and drew only one breath and died. In a minute prisoner was gone. On cross-examination, she swore that prisoner passed out of the house and down the steps rapidly; that as he passed deceased he looked at deceased, but deceased did not look at him, and that, as prisoner spoke to deceased, deceased turned towards prisoner and prisoner discharged his gun at him.
One Stancell, a witness also for the State, swore that within an hour after the homicide, prisoner came to him and asked him to lend him his repeater; he said he wanted it, for he had killed a man and was compelled to go away. Witness asked, "Whom have you killed?" Prisoner answered, "I have killed Kennedy." Witness asked, "Why did you kill him?" Prisoner answered, "Kennedy said if I went out he would kill me, G_____d damn me, and he came out and I slammed eight buck shot into him."
One Hinton stated that he examined the deceased immediately after his death, and that the load passed nearly through his body.
The before named are the witnesses examined for the State. No point was made either in the examination of the witnesses or in the prisoner's counsel's address to the jury as to the mode or immediate cause of the death of the deceased, or as to time or place.
The defendant's counsel in his statement of the grounds of defense said he should contend, first, that the prisoner was guilty of no offense, because the act of killing was committed under a temporary or permanent insanity; or, if otherwise, was excusable in necessary self-defense.
Secondly, that the prisoner was guilty of manslaughter only, as there was no malice. (229)
He introduced many witnesses who swore to the prisoner's previous good character; some of whom swore to the insanity of the prisoner's ancestry, and others swore that they knew him when a boy, and that his mind was not good; he could not learn anything and therefore they thought his mind was unsound.
The judge instructed the jury that if a killing takes place, nothing more appearing, the law implies malice, and the killing would be murder, and that in this case there was evidence of malice to do the jury, to be weighed and passed upon by them, and if they believed there was malice, it was a case of murder; that evidence of the prisoner's character was permitted to be introduced, not to screen a guilty man because of his previous good character, but to satisfy the jury that notwithstanding the evidence in the cause, the prisoner is not guilty; and that in this case, if the evidence of good character overcame the other evidence against the prisoner, and satisfied them it was not true, then they ought to find him not guilty. That it was not every degree of insanity that would excuse homicide; that if a man knows what he is doing, and at the same time knows what he is doing wrong, he is responsible for his acts. But if he does not know what he is doing, or, knowing what he is doing, he does not know that he is doing wrong, then he would not be responsible. And further, that the law does not recognize irresistible impulses as excuses for criminal acts, which the mind of the actor recognizes as wrong; that in this case, if the prisoner was insane to the extent above stated, then in this case, if the prisoner was insane to the extent above stated, then he would not be guilty; and this was equally true whether the insanity was temporary — existing at the time of the act done — or permanent.
The judge further charged the jury that there was no evidence (230) tending to show that the killing was in necessary self-defense; that if the prisoner had cause to believe, and did believe, that the deceased intended to kill him, and the prisoner killed deceased simply because of such belief, the killing would be murder. In order to excuse or mitigate the killing, the deceased must have been in a condition, actual or apparent, to kill the prisoner; that if the prisoner had good cause to believe, and did believe, that the deceased intended to kill him, and the deceased was in apparent condition to execute such intention, and the prisoner killed the deceased when the prisoner might have retreated, without danger of death or other great bodily harm, then the prisoner would be guilty of manslaughter at least.
The jury found the prisoner guilty of murder.
The was a motion in arrest of judgment: (1) Because the record does not show that the indictment was found a true bill by the grand jury. (2) The record does not show that the witnesses on whose testimony the indictment was found were sworn before they were sent to the grand jury.
The motion was overruled, and judgment was rendered according to the verdict.
No counsel for the State.
Winston, Sr., for the prisoner.
The case in the court below seems to be set forth in the record with particularity. The evidence, as well as the charge of the presiding judge, seems to be full and complete.
We have examined these in connection with each other, and are of opinion that the charge is applicable and responsive to every view (231) which can properly be taken of the evidence, and that the prisoner has no cause of complaint.
We have had no particular part of the charge called to our attention by way of exception, and suppose there is none in the view of prisoner's counsel that affords ground for such criticism.
The principles propounded to the jury in the court below, whether they relate to the grades of homicide or the question of insanity, have been so frequently discussed in this Court down to a recent period that we deem it unnecessary to repeat them now. They consist with what we regard as the settled and established law of the land.
The grounds taken in arrest of judgment are not tenable. These are also settled against the prisoner by recent adjudications in this Court. S. v. Guilford, 49 N.C. 83; S. v. Roberts, 19 N.C. 540; S. v. Barnes, 52 N.C. 20.
The record upon which the judgment below was pronounced, as stated by the court, follows the precedent in the Appendix to 4 Black. Com. This has been adopted by Mr. Eaton in his book of Forms, and approved in this Court in S. v. Guilford, supra.
The prisoner was tried for a homicide which, for aught that appears, was unprovoked and wanton. He has had the benefit of every proper safeguard afforded by the courts under the rules of law, and the record sent to this Court seems to be free from defects.
No error.
Cited: S. v. Lanier, 90 N.C. 716; S. v. McBroom, 127 N.C. 530, 535; S. v. Sultan, 142 N.C. 573.
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