Opinion
(January Term, 1873.)
1. With certain exceptions, neither the acts nor the declarations of persons not on oath and subject to cross-examination, are admissible for or against a defendant. Therefore, in an indictment against A for larceny, the admissions and acts of B tending to prove that he, B, was the guilty party, are not competent evidence on the trial of A.
2. The fact that a juror is not a resident of the county in which the indictment is tried, is a good ground of challenge, but not for a new trial, after a verdict is rendered.
INDICTMENT for larceny, tried before Moore, J., at the Spring Term, 1872, of GRANVILLE.
(159) Jones Jones for defendant.
Attorney-General and Cox, contra.
The jury returned a verdict of guilty. Motion for a new trial; motion refused. Defendant appealed.
The facts pertinent to the points raised are stated in the opinion of the Court.
The record in this case is greatly cumbered by the recital of evidence not necessary to present the point intended to be raised.
The defendant, who was indicted for the larceny of four boxes of tobacco, proposed to prove by his son that when one Miles Britt, a colored man, who had resided on the defendant's premises for two or three years, saw the prosecutor and others approaching the premises on the day after the night on which the larceny was committed, he hurried off and changed his shoes; and also that Britt stated afterwards that he had put the tobacco in the granary, and further that Britt had fled the country a few days thereafter, and had not been seen or heard from since.
All of this evidence was clearly inadmissible, for the reason that it falls under the condemnation of the maxim, res inter alos acta, etc.
But, aside from that, there is nothing in the acts and declarations of Britt inconsistent with the guilt of the defendant; both may have been guilty. With certain exceptions, which do not affect this case, neither the acts nor the declarations of persons not on oath and subject to cross-examination are admissible for or against a defendant, being merely hearsay evidence. S. v. May, 15 N.C. 428; S. v. Duncan, 28 N.C. 236. After verdict, the defendant moved for a new trial, and alleged as ground therefor, that one of the jurors who tried the case was not a resident of Granville County, and that the fact was not known to the defendant until after the verdict was rendered.
This was a good cause of challenge, but as it was not taken in apt time we must consider it as waived. But the defendant replies that he did not know it until after verdict. He could have known it, had he challenged the juror when tendered. The fact that an incompetent juror was permitted by the defendant to try his case does (160) not vitiate the verdict. S. v. Ward, 9 N.C. 443; Briggs v. Byrd, 34 N.C. 377; S. v. Patrick, 48 N.C. 443; S. v. Douglass, 63 N.C. 500.
PER CURIAM. No Error.
Cited: S. v. Haynes, 71 N.C. 84; S. v. Bishop, 73 N.C. 46; S. v. Overton, 77 N.C. 485; S. v. England, 78 N.C. 555; S. v. Boon, 80 N.C. 463, 465; S. v. Baxter, 82 N.C. 604; S. v. Gee, 92 N.C. 760; S. v. Boon, 82 N.C. 604; S. v. Boon, Ib., 648; S. v. Council, 129 N.C. 517; S. v. Maultsby, 130 N.C. 665; S. v. Lane, 166 N.C. 338.