Opinion
(June Term, 1863.)
Where there is a conflict of testimony, which leaves a case in doubt before a jury, and the judge, in his instructions, uses language which may be subject to misapprehension, and is calculated to mislead, this Court will order a venire de novo.
INDICTMENT for trading with a slave, tried before Osborne, J., at Fall Term, 1862, of DAVIDSON.
The indictment was for trading with Miles, a slave, belonging to one Robert B. Jones, for a piece of bacon. The prosecutor, Jones, swore that on a certain night of one of the first days of March (he could not tell which) he found his negro boy, Miles, near his smokehouse with some pieces of bacon in a bag, which the negro had taken from the smokehouse; that he demanded of the negro whither he intended to take it, and threatened to whip him severely unless he disclosed, whereupon the slave stated that he intended carrying it to the defendant, who was received start to Cheraw the next day, and had persuaded him to bring the bacon that night. (The conversation of the slave with the master was received by the consent of the defendant's counsel); that he then told the slave to carry it to the defendant, as he had intended, and he went with him to near the house of the defendant; that the negro placed the meat on a stump and went to the door of the house and quietly knocked and whistled, when the defendant came out and agreed to give the negro $1.50 for the meat; that defendant stated that he had no smaller sum than $5 and could not make the change, but would pay him soon; that he took the meat up and carried it into the house, and then the witness and the negro left. On cross-examination, he stated that he allowed the negro to carry four pieces, when one would have answered, because he feared the suspicions of the defendant would be excited if he had carried but a small piece of meat. He further stated, without objection on the part of defendant's counsel, that he detected the defendant once before trading with a slave which belonged to his mother, and did not prosecute, because his mother did not wish a fuss in the neighborhood.
(138) The defendant introduced one Bailey, his brother, who stated that on the last day of February he started with his brother to Cheraw; that on the first day they went out of the county of Davidson; that they were absent six days, when they returned to the house of the defendant on the night of 7 March; he was not certain, but thought that they returned about 12 o'clock at night; that defendant and his wife slept in one room of the house and he in another; that the door was open and he could see or hear whatever occurred in his brother's room, and did not believe that the circumstances narrated by the witness Jones could have occurred without his knowledge. He further stated that on the next day defendant and witness went to a sale in the neighborhood and did not return until very late; that he slept that night in the same room; that on the 8th he and his brother went to the house of one Hopkins and remained until after 12 o'clock, when they returned and slept in the manner previously described; that on the 9th he and his brother went to Wadesboro as witnesses, and did not return until the 12th of the month.
Two witnesses by the name of Hunt stated they were present when a general quarrel grew up between the witness Jones and one Reeves; that there was a great deal said on both sides which they did not hear or remember, but they were under the impression that, in the course of the quarrel, Jones said he knew nothing about the trading except what the negro told him. On cross-examination one of the witnesses stated that he could not assert, positively, that this was the language of the prosecutor, but it was his best impression.
One Hopkins testified that some time in August the prosecutor came to his field where he was at work and asked him what Reeves and Bailey, the defendant, said about his going to the house of the defendant in June, and said he had not stated at that time that Bailey got any meat from his negro, but all he knew about it his negro told him; but that on the last days of March he had detected his negro stealing meat (139) from his smokehouse; that he didn't make known to the negro that he had found it out, but followed him secretly until he saw him place the meat on a stump near the door of defendant's house; that the negro went to the door and knocked and whistled, when the defendant came out and agreed to give the negro $1.50 for the meat, but he said he had no bill smaller than $5; that he would pay him as soon as he could get the change. This witness also stated that in the same conversation the prosecutor said he would not have prosecuted the defendant if he had paid the negro for the meat and had not brought suit against him.
Several witnesses testified that the character of the prosecutor was bad, and several others testified that it was good.
The court charged the jury that if they believed the witness Jones, they ought to find the defendant guilty; but it was argued that the prosecutor should not be believed, because of contradictions to his testimony which had been proved, and because of his bad character; that as to the contradictions alleged to be derived from the witness Bailey, they would inquire whether there was any fact proved inconsistent with the testimony of the prosecutor; if they believed the trading took place before the journey to Cheraw, there was no contradiction; if it took place afterwards, whether there was a contradiction or not depended on whether there was an opportunity for the occurrence spoken of by the prosecutor to have taken place without the knowledge of the witness Bailey; that it was the duty of the jury to reconcile testimony, if possible; that on questions of time, depending upon the memory of witnesses, they would consider whether there might not be errors of recollection as to days, weeks, or hours of the night when certain occurrences took place.
As to the contradictions alleged to be proven by the witness Hunt, the court charged the jury that contradictions are more or less strengthened by the recollection of the witness, by his opportunity of hearing all the antecedents and succeeding parts of the conversation; the context might explain the language of the witness and relieve what (140) otherwise might be an apparent contradiction.
As to the contradiction deposed by the witness Hopkins, it was to be taken, as a whole, inconsistent with the statements of the prosecutor as to the manner of the negro's getting the meat and his taking it to the house of the defendant; that these matters were not material to the question of the defendant's guilt, which depended on what they might think as to whether he purchased the meat from the slave after he arrived at the house; that the contradictions of the prosecutor were immaterial matters, and, if they believed them, might go to his credit; they would also consider the testimony so far as it confirmed the State's witness in matters on which the guilt of the defendant depended, and give to each such force as they believed it entitled to; that as to the character of the prosecutor, they would consider the testimony both for and against it, always weighing it with care and scrutiny. The defendant's counsel excepted to the charge.
Verdict for the State and judgment of the court. Appeal by the defendant.
Attorney-General for the State.
No counsel for defendant.
The evidence in this case leaves the matter so nearly on a balance as to require very great consideration on the part of the jury in order to determine on which side the truth preponderates. When that is the case, it is of the utmost importance that the words used by the judge in giving his charge should be precise and accurate and not susceptible of a meaning which would be calculated to mislead the jury. His Honor puts the case on the credit of the prosecutor, Jones, and instructs the jury that it was their duty to reconcile the testimony, if possible, and then suggests that a "collision" between the witnesses Jones and Bailey, the witness for the defendant, might be avoided on the supposition that Jones was mistaken as to the date of the supposed (141) trading with the slave. It is a rule of law, based on the principle that no witness, either on the side of the prosecutor or the defense, shall be presumed to have committed perjury; that the witnesses should not be put in collision, and a perjury on the one side or the other made inevitable, if the collision can be avoided by any other fair and reasonable view of the case as presented by the whole of the evidence. We presume his Honor intended so to be understood; but his words are much stronger, and were calculated to mislead.
His Honor also instructs the jury that in regard to the alleged contradiction of the witness Jones, in that he had said in conversation before the trial that all he knew of the negro's having taken the meat and trading it to the defendant was from what the negro had told him, whereas, on his oath, he stated that he had detected the negro in the very act of taking the meat, and had gone with him, and was present when the defendant committed the very act of trading with the slave, so that he had caught the defendant in the act, that this contradiction of the witness Jones was an immaterial matter, and went to his credit, if the jury believed it. There had been no objection to the competency of the witness Jones, so that we do not clearly understand what his Honor means by the words "went to his credit," in the connection in which they were used. Of course, this contradiction went to his credit, for it bore on the very fact, and ought to have had a very decided weight with the jury, if they believed it, in estimating the credit to which the testimony of the witness Jones was entitled. There is
PER CURIAM. Error.
Cited: S. v. Rogers, 93 N.C. 532; Withers v. Lane, 144 N.C. 190; Speed v. Perry, 167 N.C. 127.
(142)