State v. Moses

Full title: THE STATE v. MOSES, a Slave

Court: Supreme Court of North Carolina

Date published: Jun 1, 1830

13 N.C. 452 (N.C. 1830)

Opinion

(June Term, 1830.)

1. Under the act of 1796 (Rev., ch. 452), directing the conduct of judges in charges to the petit jury, it is the duty of the judge to recapitulate the testimony in such a manner as will divest it of immaterial circumstances, and so to present all the facts, on each side, that they may have their fullest legitimate operation. An unfair and partial exhibition of the testimony only can be complained of.

2. The weight of testimony is exclusively the province of the jury; but its nature, relevancy and tendency it is the duty of the judge to explain.

3. The duty imposed by the act upon the judge "to state, in a full and correct manner, the facts given in evidence," does not confine him to the words spoken by the witnesses, but authorizes him to state all the circumstances attendant upon the examination, to show how they are contradictory and how reconcilable, and thence to submit a reasonable inference which may be drawn.

4. Thus, where a witness testified that at the distance of ten paces, in a dark night, he saw the prisoner pull the trigger of a gun, and the judge informed the jury that if they believed the witness meant, that by the flash of the gun he saw the prisoner's hand upon the trigger, that would explain the apparent contradiction — held, that the judge, by such instruction, did not trangress the limits of his duty.

5. Per RUFFIN, Judge. — If a judge, in his charge to the jury, presents only the inferences that can be drawn on one side, arrayed in solido, so as to constitute an imposing argument to the jury, without summing up on the other side, it is an evasion of the statute.

6. By the act of 1811 (Rev., ch. 809), to regulate proceedings on indictments in the Superior Courts, all defects in indictments are cured, except the omission of an averment of facts and circumstances which constitute the crime charged. Nothing need be stated of which proof is not required on the trial. Therefore, in an indictment for murder it is necessary to aver that a mortal wound was given, but the size and nature of the wound being in an indictment for murder it is necessary to aver that a mortal wound was given, but the size and nature of the wound being matters not material to the description (453) of the offense, nor a necessary part of the evidence, its dimensions need not be stated.

7. An indictment concluding "and the jurors," omitting the word so is sufficient.

8. Where a cause is removed for trial it is the exclusive duty of the judge of the Superior Court to determine the fact whether the transcript of the record was certified under the seal of the Court, and this Court will not revise his decision.

The prisoner was indicted in the Superior Court of Jones, as follows:

Gaston, for the prisoner.

The Attorney-General, for the State.

FROM CRAVEN.

"The jurors for the State upon their oath present, that Moses, a slave, etc., not having the fear, etc., but being moved and seduced, etc., on, etc., at, etc., with force and arms, at, etc., in and upon one Gabriel, a slave, etc., in the peace, etc., feloniously, wilfully, and of his malice aforethought, did make an assault, and that he, the said Moses, with a certain gun, of the value, etc., then and there charged and loaded with, etc., which gun the said Moses in both his hands, etc., to, against and upon the said Gabriel, then and there feloniously, wilfully, and of his malice aforethought, did shoot and discharge, and the said Moses, with the leaden shot aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder, shot and sent forth as aforesaid, the said Gabriel, in and upon, etc., then and there, feloniously, wilfully, and of his malice aforethought, did strike, penetrate and wound, giving to the said Gabriel, then and there, with, etc., so as aforesaid shot, etc., in and upon, etc., one mortal wound of the breadth of two inches, and of the length of six inches of which said mortal wound the said Gabriel then and there instantly died. And the jurors aforesaid, upon their oath aforesaid, do say that the said Moses, the said Gabriel, in manner and form aforesaid, feloniously, wilfuly, and of his malice aforethought, did kill and murder, against, etc."

After the arraignment and plea, upon the affidavit of the prisoner, the trial was removed to CRAVEN. The following is a copy of the certificate of the clerk of JONES, upon sending a copy of the record to CRAVEN, as certified by the clerk of Craven; the seal of county of Jones being represented in the transcript from Craven by (454) a scrawl.

[L. S.] "State of North Carolina, Jones County:

"I, R. B., clerk of the Superior Court of Jones county, hereby certify that the foregoing transcript contains true copies of the original bill of indictment, capias, plea, and all other proceedings lately had in the suit in which the State is plaintiff and negro Moses defendant, as full and entire as they remain of record in said Court at Trenton. 22d October, 1829. "R. B., Clerk."

On the trial before his Honor, Judge STRANGE, the principal witness for the prosecution deposed that on a dark night he was standing within ten steps of the prisoner, when he saw him pull the trigger and fire the gun which killed the deceased. The cross-examination of the witness was not very particular, and he did not in any way explain how he was enabled to see in the night. The witness stated that after the deceased was shot, the prisoner and himself, both being fugitive slaves, went into the woods, where the prisoner left him, the witness, and went towards the house of Juba, a slave of Mr. Stanly's, and after being absent some time, returned and said that Juba had charged him with being the murderer of the deceased. Juba was called for the prisoner, and positively denied having ever seen the prisoner during the whole time he was a fugitive, either at his own house or elsewhere. Witnesses were also called for the prisoner, who gave Juba a good character, and proved especially that he stood high in the confidence of his master. A witness from Robeson county was examined, in support of the principal witness for the prosecutor. He was impeached by another witness from the same county, who swore that before he, the last-mentioned witness, was summoned he heard the first say that he had a grudge against the prisoner, and would hang him if he could, and afterwards, as they were travelling together to Court, the (455) conversation was repeated.

The counsel for the prisoner placed his defence upon the total want of credibility in the witnesses for the prosecution. It was argued — first, that the testimony of the principal witness was not credible from its absurdity, for how could a man in a dark night, at a distance of ten steps, see another pull the trigger of a gun. Secondly. It was urged that he was directly contradicted by Juba; and thirdly, that such feelings were proved to exist in the breast of the witness from Robeson that no confidence whatever could be placed in his testimony.

His Honor, in his charge to the jury, informed them that the credit they would give to the testimony was a matter exclusively with them, and proceeded to suggest such circumstances as, in his opinion, might be considered by them as tending to shake or support the credit of the witness for the State, and leaving it also to them to give such weight to any other circumstances which they might remember and the Judge should omit, as they thought proper.

In speaking of the first objection, the Judge said that a man might see by the flash of a gun, even in the night, and probably the darker the night the more distinctly; and if they believed from the testimony that was the case in the present instance, and that seeing a man in the attitude of shooting, with his hand upon the trigger, and even by the flash of the gun, was substantially seeing him pull the trigger; and that if this was the fact in the particular case, then the contradiction relied upon in the testimony of the witness did not exist.

Upon the second objection, his Honor instructed the jury that in weighing the credit of the witnesses for the State and for the prisoner, the motives in each to speak truth or falsehood might and ought to be considered; and it was for them to say whether any and what influence the witness Juba's having a good character, and standing high in the estimation of his master, might have in making him (456) desirous to conceal any intercourse he might have had with a runaway slave.

Upon the third objection, the jury were instructed that one of the conversations in which the witness from Robeson was said to have acknowledged to the witness for the prisoner that he was influenced by malice against him, was after it was known to that witness that the other had been summoned for the express purpose of discrediting him, and while he was going to Court to accomplish that purpose, and the probability of such an acknowledgment under such circumstances should be considered by them in weighing the credit of the discrediting witness.

The jury returned a verdict of guilty, upon which the counsel for the prisoner obtained a rule for a new trial for misdirection, which was discharged. A motion in arrest of judgment was then made, because the word so, in the conclusion of the indictment, was improperly omitted, but the motion was overruled, and judgment of death entered up, from which the prisoner appealed.

RUFFIN, J.

— The act of 1796 (Rev., ch. 452), "to direct the conduct of judges in charges to the petit jury," restrains the judge from giving an opinion, whether a fact is fully or sufficiently proved. At the same time, it imposes another duty, which is to state in a full and explicit manner, the facts given in evidence, and declare and explain the law arising thereon.

Perhaps the judge presiding at the trial will find no part of his task more difficult than that of determining how he may fulfill that part of his duty which is active, without violating that (457) injunction of the statute which is restrictive.

The act must be so construed as to leave the two duties compatible with each other; for neither clause must overrule the other. The full and explicit statement of the facts required from the judge cannot mean a mere repetition from his notes of the testimony, in the order in which it was delivered; that would be a vain and empty ceremony, consuming time without conveying instruction. If the judge is to say anything, and not be a mere automaton, his statement must be such as to exhibit to the jury the nature of the plaintiff's cause of action, and of the defence in point of law, the matters of fact in issue on the record, and also those in dispute between the parties upon the testimony actually given, tending to maintain on either side the main fact contained in the issue. To do this with the least prospect of affording aid to the jury, the judge is obliged to present the evidence in such a light as will divest it of all those immaterial parts, that necessarily more or less incumber every trial, and to collate the residue so as to bring it to bear with the strength of combination on the points in controversy. He is so to present each fact, that it may have its fullest legitimate operation on the conclusion sought for. And if on each side the evidence is thus exhibited it cannot but ease the labors of the jury, lead them through the convictions of their understandings to a just determination, and give certainty and dignity to the course of justice. An unfair and partial exhibition of the testimony can alone be complained of; and the apprehension of that seems to have induced the passage of the law under consideration. It is not for us to say whether that apprehension was well or ill founded; or whether the administration of the law would not be more certain, its tribunals (458) more revered, and the suitors better satisfied, if the judge were required to submit his view upon the whole case, and after the able and ingenious, but interested and partial arguments of counsel, to follow with his own calm, discreet, sensible and impartial summary of the case, including both law and fact. Such elucidations from an upright, learned, and discreet magistrate, habituated to the investigation of complicated masses of testimony, often contradictory, and often apparently so, but really reconcilable, would be of infinite utility to a conscientious jury in arriving at just conclusions — not by force of the judge's opinion, but of the reasons on which it was founded, and on which the jury would still have to pass. If this duty were imposed on the judge, it is not to be questioned, that success would oftener than it does depend on the justice of the case, rather than the ability or adroitness of the advocate. But such is certainly neither the duty, nor within the competency of our judges. I have already mentioned that it would be difficult for a judge, surrounded by all the circumstances, to determine exactly what is his duty in this respect, in law, and his own conscience. With still less certainty can a revising Court lay down any rules a priori, or even apply them, after they are prescribed to cases as they arise. So much of the meaning of words depends upon their context, and of words spoken, upon the tone, emphasis, temper, and manner of the speaker, that it is utterly impossible that the whole can be transferred to paper, so as to enable an appellate tribunal to pass in general upon cases, without imminent hazard of doing injustice to the parties, and casting unmerited reproach upon the intentions of the judge and the understanding of the jury. If I were to lay down a rule as growing out of this act of Assembly, I would say that it was in general this: that the weight of the evidence is for the jury; they hold the scales for that. But the nature, relevancy, and tendency of the evidence, it is competent for the judge and his duty to explain. He is not only to recapitulate the testimony, but to show what it tends to prove, and he may recapitulate it in such order and (459) connection as to give it the effect of proving the fact sought for, if in itself it be sufficient for that purpose. Whether it be sufficient, it is the province of the jury to determine, and by this statute it is their exclusive province; and the judge cannot give his opinion in aid of theirs that it is or is not sufficient. But if he is to speak at all (and this act makes it his duty to speak), it is not to be supposed that his interposition is for the sake of increasing the doubts of the jury, or leaving them as they were; but that his discussion of the case, fair, grave, sensible, and impartial, may enable the jury better to decide upon the sufficiency of the proof, though deprived of the advantage of his opinion on that point. For a plain departure from that fairness and impartiality, it would be the duty of this Court to set aside the verdict, as much as if the judge were explicitly to declare his opinion upon the weight of the evidence. But short of a clear case, this Court cannot interpose, but must necessarily leave it to the conscience of the judge himself, upon the responsibility of his professional reputation, and official oath and character, to determine.

To apply these observations to the case before us: It is objected here that the Court below assumed the power of expressing an opinion upon the facts, or expressed such forced inferences from the testimony, as might bias the minds of the jury. The facts to which those parts of the charge apply were the credit due to several witnesses. The main fact in dispute, on which the issue was joined, was the guilt or innocence of the prisoner. This depended upon the subordinate facts of the veracity or falsehood of the tales of the witnesses. Now this last fact — of credibility, or the want of it — rested again upon other facts which tended to sap or sustain it. It is to be remarked here that the judge is to give a full and explicit statement of all the facts given in evidence. What is meant by "a fact given in evidence?" Is it (460) confined to the very words spoken by the witnesses, or does it extend to all attendant circumstances? For instance, it is a rule that the jury may judge of the credit of a witness, not only upon testimony of his general character, but upon his own testimony; upon the probability of his story, its consistency, or self-contradiction, the witness' willingness to depose to the whole case, or his hesitation and reluctance to testify against the party calling him, his manner, and even the expression of his countenance. Indeed, these principles constitute the chief excellence of the trial by jury; because the viva voce examination represses at once the committing of perjuries, and facilitates their detection. Are not all these circumstances, when they happen (and happen some of them must in every case), "facts in evidence?" If they be not, the jury is to discredit a witness without any fact being in evidence upon which they can do it. If they be such facts, then the judge is to comment upon each fact, as he would on any other. For instance, if a witness, after deposing to the case of the plaintiff, positively refuse to submit to a cross-examination, the Court may not only commit him for a contempt, but may commit him before the face of the jury, and pending the trial, though the act of the Court may affect his credit in the estimation of the jury. And in charging the jury, the judge is not obliged to confine himself to delivering the abstract rule that a witness does impair his credit by refusing to give full evidence; but may, and ought also to call the attention of the jury to the specific misbehavior before their own eyes, a fact in evidence to him and them. Again, if the credit of one witness is assailed upon the ground that he is contradicted by two others, is the Court barely to inform the jury that if such contradiction exist, it may impair the credit of the first witness, but that they have the right in law to reconcile the testimony, and then act on it? Or may he not mention to them the circumstances, (461) and show how they are contradictory, or how reconcilable, leaving it to the jury to say whether in truth, the two tales do or do not stand together, according to the parts of the transaction to which they relate, or to the meaning of the witnesses? Such a course as this last seems to me to be right, useful, and lawful.

In the case before us it was argued for the prisoner that the witness' credit was destroyed, not by the contradiction of others, but by absurdity and contradiction of himself, in deposing that he saw the prisoner in the night pull the trigger of the gun. This argument was well or ill founded, as the night might be more or less dark, or the meaning of the witness was to be taken as literally or substantially expressed by his words. How dark the night was, was a fact the Court could not say was proved, but only that it was sworn to; and what was the meaning of the witness, the Court could not determine, but only that it might have a meaning not absurd and contradictory, and leave it to the jury to say whether in truth it was light enough for the witness to see the prisoner pull the trigger; or if not, whether he meant, by "seeing him pull the trigger," that he saw his finger on the trigger at or immediately after the gun fired. If this last was his meaning, there was plainly no contradiction, and the argument fell. This is a deduction of right reason, which the Court could express. The Court did not express an opinion on the question what in fact was the meaning, but leaving that to the jury, said that as it should be found, the other consequence would follow on the one side or the other. So with respect to the other points, the Court uttered nothing but suggestions of certain views which might be taken of the testimony, without saying whether they were or were not the correct views. As an example, the judge charged the jury that they might consider the probability of the tale of the witness from Robeson, in passing on the credit of a witness for the State, whom the former was brought to discredit by proving (462) his declarations of enmity to the prisoner. Now certainly when one witness on his oath deposes to a fact, and another is called to discredit him by proving declarations of ill-will, the time of making those declarations, and the person to whom they are said to have been made, are circumstances, with others, tending to show the probability or improbability that they were in fact made, and thence to impeach the credibility of the witness who affirms that they were uttered or of him who denies them. The judge has a right as against the witness who proves them, to assume the time deposed to by himself as the true time, and thence submit a reasonable inference, which may be drawn. But he cannot say it must be drawn. That is the province of the jury. In like manner, the other exceptions are readily disposed of, without my going through them in detail. The whole are regarded as mere suggestions by the judge to the jury of the construction of which the words of the witnesses are susceptible, or the inferences which could be deduced from admitted or hypothetical facts, in each case, leaving it to the jury to say what was the true construction, or the true inference. I think this is the legitimate province of a judge within the statute under consideration. If I err, the charge of the judge is an empty pageant and ceremonial mockery, which may serve for the amusement of the crowd. But instead of aiding the jury by rescuing the case from the false glosses of powerful advocates, and the misconception of the evidence as applicable to the legal controversy, will but confound the jury, and still further obscure the truth.

It is to recollected that the objection here is not that the charge of the judge as a whole was partial or unfair, and therefore that he did not give "a full and explicit statement of the facts in evidence." The whole charge is not given to us; but detached sentences are picked out as being per se violations of the act of Assembly. They are (463) not so in themselves; but they would be so, if they formed the whole charge, and so appeared to us; I mean, if the Court presented to the jury only the inferences that could be drawn on one side, arrayed in solido, so as to constitute an imposing argument to the jury without also summing up on the other side. For that would be a palpable evasion of the statute, if not a corrupt violation of the great duty of impartiality, incumbent upon every judge and juror. There is no such complaint here; the objection, on the contrary, is that any suggestion, however reasonable, and though (without relating to the sufficiency of proof), it form a part of the most explicit charge, going fully and impartially into the case on both sides, is forbidden to the judge. That, I think, for the reason I have given, is not so. Consequently, the motion for a new trial was, in my opinion, properly overruled.

There are also several reasons offered in arrest of judgment. The most important is one taken in this Court for the first time, which is that the depth of the wound is not laid in the indictment. This is a fatal defect at common law. S. v. Owen, 5 N.C. 452, would save us the necessity of investigation into authorities of a remoter period, as that is precisely in point, were it not that in our opinion the law is since altered, and the alteration can only be properly understood by a recurrence to the ancient law, the better to ascertain the nature of the defect. The act of 1811, Rev., ch. 809, passed the year after Owen's case was decided and we have reason to believe was caused by it. It enacted that in all criminal prosecutions in the Superior Courts, it shall be sufficient that the indictment contain the charge in a plain, intelligible, and explicit manner; and no judgment shall be arrested for or by reason of any informality or refinement, when there appears to be sufficient in the face of the indictment to induce the Court to proceed to judgment.

This law was certainly designed to uphold the execution of public justice, by freeing the Courts from those fetters of form, (464) technicality, and refinement, which do not concern the substance of the charge, and the proof to support it. Many of the sages of the law had before called nice objections of this sort a disease of the law, and a reproach to the bench, and lamented that they were bound down to strict and precise precedents, neither more brief, plain, nor perspicuous than that which they were constrained to reject. In all indictments, as especially those for felonies, exceptions extremely refined, and often going to form only, have been, though reluctantly, entertained. We think the legislature meant to disallow the whole of them, and only require the substance, that is a direct averment of those facts and circumstances which constitute the crime, to be set forth. It is to be remarked that the act directs the Court to proceed to judgment, without regard to two things — the one form, the other refinement. The first can embrace, perhaps, only the mode of stating the fact. If the fact be one essentially entered into a crime, it must be set forth; but it need not be set forth in any particular words, if other words can be found which will convey the whole requisite legal idea. Pleaders are much to be commended for pursuing the ancient, settled, and approved precedents. They are the best evidence of the law itself; and it is a becoming modesty in us, the emblem of merit, to evince a marked veneration for the sages who have preceded us. But it has pleased the legislature not to require, as a matter of duty, in all cases, what is certainly a matter of prudence and propriety. Allowing it to be necessary that a certain fact shall be stated, they have dispensed with the necessity for stating it in a certain manner. S. v. Dickens, 2 N.C. 406, is the first instance in our books, and it is a strong one, illustrative of the construction of this branch of our statute. The objections were that the time was stated in figures, and that "extorsively" was omitted. They were both overruled; the first because the figures were as well understood (465) by the Court as letters would have been; the second, because the extortion, which was the substance, did as well, and by as strict legal intendment, appear to the Court, as if it had been described by that name, since the indictment charged that the defendant did, by color of his office, and for wicked gain's sake, receive a larger fee than by law was due to him. These facts constitute extortion; and, therefore, the extortion appeared to the Court, without the jury calling it so. It is to be observed that the indictment was found in the County Court, and was governed by the act of 1784; though Judge HAYWOOD admitted that it would not do in the Superior Court. I will not say that the last point ruled would hold in a case of felony, because, perhaps, there is no periphrasis expressive of the technical sense of felonice, burglariter, rapuit, murdravit, and the like; or that it was even proper, in the particular case of misdemeanor then before the Court, for the like reason. But although the propriety of the application of the rule may be doubted, the rule itself is there clearly established. The act of 1811 is a literal copy of that of 1784, except that it relates to the Superior Courts. S. v. Cherry, 7 N.C. 7, is another case on these statutes. The Court did not intend to dispense with time and place, as material facts in the indictment; but considered that although the common law required them to be annexed expressly to each act, and would allow of no implication, yet under the statute time and place were sufficiently annexed to the giving the mortal blow, without saying "then and there giving," because, to any common mind, the whole matter was stated as one transaction and the mortal blow was to be referred, as to time and place, to the previous assault.

I do not know that the present objection concerns so much matter of form as of refinement. It demands, rather, that a particular (466) immaterial fact should be stated than that the statement should be in a prescribed form. The complaint is that the depth of the wound is not stated at all, and not that it is not properly stated. Though it may be examined a little deeper, and turn out to be a mere objection of form, if we consider that the length and depth of the wound are not independent facts of themselves, but only circumstances and incidents of the wound, showing it to be mortal, over and above the direct allegation of its mortality. Thus it may concern the mere form of setting out the wound. It becomes us now to inquire whether this be one of those matters of form or refinement contemplated by the legislature.

No doubt that originally the dimensions of the wound were set out that the Court might see whether it was of a nature to cause death. The particularity of the description can be attributed to no other motive. The Court meant to supervise the jury as to the correctness of their conclusion. If this be so, it must have been necessary to allege these matters according to the truth, else the fact found by the jury would give no information to the Court. And at the early day at which indictments for murder were first settled, I have no doubt it was required that the proof should support the description. It is impossible to suppose that a merely false averment was indispensable upon a trial for life. This particularity so often defeated prosecutions as to place the judges under the necessity of relaxing, so far as to allow indictments to be sustained by evidence of the substance. The substance is that the prisoner gave the deceased a mortal blow of which he died. A stroke, a mortal wound inflicted thereby, and the averment of death by that wound are essential. To those points proof has been at all times required. But beyond them no proof has been demanded for centuries past. True, a strict conformity to early usage in framing the accusation has been exacted. But in support of it, much latitude of proof was permitted. Upon this relaxation, it is to be wondered that it did (467) not extend to the indictment also. It did not, however, and the judges who found the rule of evidence as well established as the method of accusing, often expressed their sense of the incongruity. Yet finding it so, they properly stood by it, until a change should be wrought by the legislature. In England that has not been effected to this day. Here, we think, that it was by the act of 1811. That the wound, its mortality, and its actually causing the death, are the substantial parts, and the rest refined formalities, may be gathered not only from the nature of the proof required, but also from the manner in which the most approved writers speak on the subject. Thus Lord Hale (2 Pl. C., 186) says, that, regularly, the length and depth of the wound are to be shown; "but," he adds, "though the manner and place of the hurt and its nature be requisite, as to the formality of the indictment, and it is fit to be done as near the truth as may be; yet if, upon evidence, it appears to be another kind of wound, in another place, if the party died of it, it is sufficient." There are cases in which the length of the wound need not be given, as where a limb is cut off, or where mortale vulnus penetrans in et per corpus is alleged. Again, plaga means both a wound and a bruise, and no dimensions are required of a bruise. Now is it not strange that where a mortal wound is charged its dimensions must be given, yet, where the wound is stated to be in and through the body, or by cutting off the right arm, this latter indictment may be supported by proof of a wound in the side or the head, not going through nor dismembering the body; that is, by proof of a fact, which, if stated in the indictment, would not of itself suffice to sustain it. So, if the word plaga be used without adding dimensions, it shall be taken to be a bruise, though, by itself, it means wound as well as bruise, and thus life is taken upon an equivocal word. Indeed, where it means bruise, you may prove a wound. To all these purposes we find cases fully supporting Lord Hale's (468) observation, that if one kind of wound in one place be alleged, it sufficeth to prove another kind of wound in another place, provided the party died of that proved. So that the general rule is that lay the wound as you will — namely, of a certain length and depth, or as going through the body, or by cutting off a limb, or as a bruise — proof that the party died of an injury of the like kind is sufficient. So, that, in truth, it has now resulted that the finding of the jury, in fact, gives no information to the Court of the place or dimensions of the wound, or whether it be a wound or a bruise. Is not this conclusive that in substance they are all the same, and are comprehended in the "mortal wound" alleged, whereby the party died? The only restriction upon the proof is that it shall not be of a species of death entirely different; for example, by poisoning or strangling, when alleged to be by striking, or vice versa.

After this, I think, we must conclude with Sergeant Hawkins, when speaking of the necessity of setting forth a particular weapon (Pl. C., book 2, ch. 46, sec. 37), that the substance of the matter is whether the accused gave the party a wound of which he died, and its length and depth are not material, "though for former form's sake, it be necessary to set forth a particular length and depth." This former form we are released from by the act of Assembly; and since none of the averments need be supported by other proof than of a killing by a wound, it seems now to be superfluous to charge more than a mortal wound or bruise, without a further formal description of it. Such a description seems now as superfluous as vi et armis et baculis are since the statute 37, Henry VIII. We are as much bound to dispense with unnecessary and immaterial averments when permitted by the statute, as if commanded by it; and if the one in question be not of that character, it is difficult to say, to what "unseemly nicity" as Lord Hale calls it, formality (469) or refinement the act can extend.

It appears by a second transcript that the objection that the indictment is ungrammatical and senseless, because it has "him the said Moses," instead of he, grows out of a slip of the clerk in copying.

Another objection is that the indictment does not conclude with "so." A proper conclusion is necessary; for otherwise it will not appear that the jurors have drawn their conclusion from the preceding facts. The precedents within our reach here all use the word "so." But Mr. Starkie, in his treatise, p. 82, gives a conclusion without it; and it would seem that the words in the conclusion, "that the said Moses, him the said Gabriel in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder," must refer as certainly to the whole matter foregoing as if "so" was also used.

The last objection urged is that the transcript of the record from Jones Court does not purport to have been given under the seal of that Court. The answer is that this Court is incapable of deciding that fact. The certificate of the clerk of Jones does not say that he gives it under the seal of that Court. But the clerk of Craven, in setting forth in the transcript from his court that from Jones, endeavors to represent the seal ad ejus locum. I suppose this to have been unnecessary, for the judge below can alone determine the fact, whether the seal of Jones Court was affixd [affixed] to the transcript, and as he has acted on it, it is conclusive. It is the seal of the Court, and not the certificate of the clerk that it is the seal, which verifies the record.

Wherefore, I think, the reasons in arrest must be overruled, and judgment of death be pronounced on the prisoner.

PER CURIAM. Affirmed.

Cited: S. v. Davis, 15 N.C. 614; S. v. Jesse, 19 N.C. 301; S. v. Gallimore, 24 N.C. 377; S. v. Duncan, 28 N.C. 240; S. v. Green, 29 N.C. 41; S. v. Shepherd, 30 N.C. 199; S. v. Latham, 35 N.C. 35; Bailey v. Poole, Ib., 408; S. v. Cardwell, 44 N.C. 249; S. v. Noblett, 47 N.C. 431, 434; S. v. Smith, 63 N.C. 236; S. v. Caveness, 78 N.C. 487; S. v. Parker, 81 N.C. 533; S. v. Hardee, 83 N.C. 621; S. v. Morgan, 85 N.C. 584; S. v. Lambert, 93 N.C. 622; S. v. Jones, 97 N.C. 474; S. v. Boyle, 104 N.C. 820; S. v. Kirkman, Ib., 913; S. v. Harris, 106 N.C. 687; S. v. Barnes, 122 N.C. 1035; S. v. Hester, Ib., 1050; S. v. McBroom, 127 N.C. 534; S. v. Leeper, 146 N.C. 659, 660; S. v. Whedbee, 152 N.C. 781.

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