Opinion
August Term, 1853.
1. The Supreme Court, in cases at law, is strictly a Court of errors, and therefore on appeal, can notice only matters of law, appearing on the record proper, or a bill of exceptions or statement in the nature thereof.
2. On the trial of an indictment against a husband for the murder of his wife, it is proper on the part of the State, to ask their daughter, a witness for the prosecution, whether her father and mother did not "quarrel."
3. Where an exception shows or supposes a state of things inconsistent with the statement made up by the judge, it must be disregarded, and the statement taken to be true.
4. Where a record shows that the prisoner was brought to the bar in the custody of the sheriff, and then, setting out the drawing, etc., of the jury and their verdict, contains this entry, "The prisoner is remanded," the presence of the prisoner during the whole trial appears with judicial certainty.
(The cases of S. v. Gallimore, 29 N.C. 149; S. v. Benton, 19 N.C. 196; Ring v. King, 20 N.C. 301; Bank v. Hunter, 12 N.C. 100; NcNeill v. Massey, 10 N.C. 91; S. v. Morris, 10 N.C. 388, and Paschall v. Williams, 11 N.C. 292, cited and approved.)
THE prisoner was indicted and tried before his Honor, Caldwell, J., at LINCOLNTON, on the last Spring Circuit, for the murder of his wife, alleged in the bill to have been committed by means of choking, suffocation, and strangling. The following is the case sent to this Court as made out by the presiding judge:
Attorney-General for the State.
Guion for prisoner.
"On the trial it was alleged by the State that the parties had lived very unhappily together. On the part of the State the first witness introduced was a daughter of the prisoner and deceased. The solicitor for the State asked her, the first question propounded, whether (437) her father and mother quarreled? And thereupon the counsel for the prisoner objected that the witness should be asked what they quarreled about; and the court remarked to the defendant's counsel, they could cross-examine as to the cause of quarrel; and the counsel for the prisoner excepted to the opinion of the court. In the course of the examination, the said witness was examined as to the causes of quarrel between the prisoner and his wife, and she stated, among other things, that her mother was jealous of her father; that unkind feelings had existed between them for thirteen years, insomuch that the parties did not eat at the same table. The counsel for the prisoner also excepted to the charge of the court to the jury, alleging that the court was moved to charge that if the deceased even came to her death by the hands of the prisoner, if it were by breaking her neck, he could not be convicted upon this indictment, which charged that deceased came to her death by suffocation and strangling. It was so argued to the jury by the prisoner's counsel, but the court was not moved so to charge. The court, however, did say to the jury, at the close of the charge, in express terms, that they must be satisfied that the deceased came to her death by suffocation and strangling, and that the prisoner was the perpetrator."
"The counsel also excepted to the charge, because, as they alleged, the testimony was only partially recited, and was misrecited — that the strong points against the prisoner were arrayed against him in an argumentative way, while those in his favor were omitted. The prisoner did not introduce a single witness, but relied upon the State's witnesses and their cross-examination, the examination of all which occupied the greater part of two days; and the court, in summing up did not state the testimony in detail, word for word, but did state the substance of what every witness swore, and presented to the jury the bearing of the testimony on the points to which the witnesses were called; and the court also stated the view insisted on by the State, and the view insisted on by the prisoner's counsel. No exceptions were taken during the charge or at the close of it, upon the subject-matter of this exception, or any other taken to the charge.
"In the next place, the counsel for the prisoner excepts to (438) the charge of the court, for that the testimony of Dr. Williams was misrecited. By defendant, it is alleged that Dr. Williams stated that he only attended upon a post mortem examination of the deceased, to ascertain whether the body was in a sound and healthy state at the time deceased came to her death; that he opened her body and found the internal organs healthy; that he opened her neck and found the windpipe compressed, and externally the impressions of a thumb and three fingers of a left hand; that he concluded she had been choked to death; and did not think her neck was broken; that he did not examine the neck bone, and did not recollect that he examined the back of the neck. Dr. Williams did not state that he only went to the post mortem examination to examine whether the body was in a sound and healthy state or not. He stated that he was called there to examine the body — that he did examine it, and found the internal organs healthy — that he examined the neck bone in front, and, to enable him to do so, he cut away the jaw and the flesh, muscles, etc.; that he did not remove the flesh from the back of the neck — and he stated in direct terms that the neck of the deceased had not been broken, and he gave it as his decided opinion that deceased came to her death from suffocation and strangling; and stated at some length the signs of violence on her throat.
"In the next place, the prisoner's counsel excepts to the charge of the court, for that the court stated to the jury, that the prisoner said he feared that the marks upon the legs of the deceased would come in judgment against him, and that he so stated before her clothes were raised above her knees, and before he could have seen the marks, and in this connection, that the court omitted to state one fact as sworn to by Harman and others, that there were scratches below her knees, which they saw before the rails were removed or her clothes raised. On this part of the case, it was proved that when the deceased was found, the body was in a sitting posture in the corner of a fence; that a rail was lying on her shoulders and against her neck; that rails were lying across her legs; that the rails by pressing on her legs had made marks; that her clothes came down and covered one knee and covered the other leg below the knee; that above her knee and so up there were scratches and marks as though made by finger nails or the sharp end of a (439) piece of wood. None of the witnesses, as recollected by the court, said anything about scratches on her legs below the knees. They spoke of marks from the pressure of the rails on the flesh; and it was also in evidence on this part of the case, that shortly after the body was found, and shortly after the prisoner came up to where it was, he expressed to witness his fears that he would be charged about those scratches, saying he did not understand them, and he so expressed himself before the rails were taken off the legs of the deceased, before her clothes were raised, and before her body was touched after found as aforesaid. And on this part of the case, it was also in evidence that after the body was removed, it was examined with a view to ascertain whether the deceased had been ravished; and several of the witnesses testified that nothing of the kind had taken place. The court stated to the jury, that according to the testimony, if believed, the prisoner did express his fears that the marks upon the thighs of the deceased would be brought up in judgment against him, and that he so expressed himself before the rails were removed from her legs or her clothes raised, and before the body had been touched, and recapitulated the substance of the testimony as herein stated.
"And the counsel for the prisoner also excepts to the charge of the court, for that the court charged that the prisoner had failed to call on any witness as to where he was between 8 and 9 o'clock of the morning of the murder, and that he should have done so; and that the court also charged that the prisoner had told his daughter that he was going to the machine pond to fix up some fencing that a mule had thrown down, and that the court then remarked to the jury in an interrogating and emphatic manner, do you believe that it would have taken the prisoner two hours to fix up a fence that a mule could kick down? That the witness, Susan Langford, had stated that the prisoner was going down to see about, not to fix it; that in this connection the court omitted to state that the prisoner returned home a quarter before 9 o'clock, and had stated to his daughter, the said Susan, that the hogs in the pasture near the machine pond should be turned out, as there was a great many acorns under the oak trees outside. The testimony on this point of the case was, that the prisoner left home on Sunday morning, 10 (440) September, 1852, between 6 and 7, as deposed by said Susan, and others of his children; that his wife, the deceased, had gone the evening before to see her married daughter, with orders from the prisoner to return home early on Sunday morning; that when he left home between 6 and 7 as aforesaid, he told his children that he was going to the machine pond to fix up a fence that had been thrown down by a mule, it being in an opposite direction from where the dead body was found; that he was absent until a quarter to 9 o'clock of said morning, and when he returned he stated to the witness, Susan, that he had been all the time engaged in fixing up the fence at the head of the machine pond that had been thrown down by the mule. He also stated that there were a great many acorns under the trees, and he wanted to turn the hogs out upon them. This is the testimony upon this part of the case, and the court stated it to the jury substantially, without interrogatory or emphasis; and the court did state to the jury what the prisoner said about the acorns and turning out the stock, and that he returned home a quarter to 9 o'clock. Upon this part of the case it also appeared that the tracks of the prisoner were found, shortly after the murder, not far from the head of said machine pond, going in the direction of the spot where the dead body was found, and returning by a somewhat different route from said spot. That his tracks were so clearly identified, being so well known in the neighborhood, that his counsel admitted they were his tracks. The prisoner offered no evidence as to the fence bring thrown down or put up, or any signs that it had been broken or mended, nor did he offer any evidence that his tracks were found or seen by any one at the place to which he said he went to fix up the fence. And it also appeared in evidence, that on Saturday evening, the day before the murder was committed, the prisoner left home shortly after his wife, who, as before stated, had gone to see her married daughter; that on said evening he was at the house of a Mrs. Polly Gamble, with whom he had been living in a state of adultery for three years; that he told her his wife had gone to see her daughter that evening; that he had ordered her to come home early next morning, and that he would waylay the road and murder her, and if she did (441) not see him by 8 o'clock next morning, she might know that it was done; and also said, `Don't you see it in my countenance?' And further said, `Now, Polly, death before acknowledgment.' And it also appeared that the prisoner on two or three occasions had incited the said Mrs. Gamble to kill his wife; that at one time he offered her fifty dollars; that he had also incited a Negroe in the neighborhood. And it also appeared that the body was found some fifty or a hundred yards from the road the deceased would pass in returning home; that she left her daughter about 8 o'clock Sunday morning, and that the screams of a female voice were heard in the direction where the body was found a little after 8 o'clock. The court told the jury that the tracks of the prisoner had been found going towards the spot where the dead body was found; that he had offered no evidence that the fence at the head of the pond had the appearance of having been broken or repaired; that he had offered no evidence that his tracks were found or seen at the place to which he said he went to mend or put up the fence, though they were well known in the neighborhood, according to the testimony. The court also told the jury that the prisoner had said that he had been at the fence repairing it that morning; that when his declarations were called for by the State the jury were bound to weigh what he said in his favor, but not bound to believe all he said. The court did not charge the jury that the prisoner ought to have called witnesses, or ought to have proved that he was at the fence, or that it had been broken or repaired; nor did the court charge that he ought to have proved that his tracks were seen or found at the said fence. The court only told the jury that the prisoner had offered no evidence touching these points."
The jury found a verdict of guilty; and after an ineffectual motion for a new trial, and judgment rendered on the verdict, the prisoner appealed to the Supreme Court.
The court has examined, with great care, the bill of exceptions filed in this case, and also the record, properly so called, anxiously desirous to discharge their duty, both to the State and to the prisoner. Much matter not pertinent to the case was (442) thrown into the argument here. We listened to it patiently and respectfully, willing that the prisoner should have the benefit of every suggestion which could legitimately be taken into consideration by us.
This Court is strictly a court of error, and can only review matters of law. We cannot, therefore, in forming our judgment, go out of the record. To that we are strictly confined. In the case of S. v. Godwin, 27 N.C. 401, after a conviction of murder, a motion was made for a new trial upon the ground that the constable, who had charge of the jury, upon their retirement to make up their verdict, left the jury for an hour and a half; and affidavits were laid before the Superior Court and were sent to the Supreme Court. The latter tribunal refused to look into them, upon the ground they were confined to the record; and in the case of S. v. Gallimore, 29 N.C. 147, it is ruled that every appeal to this Court consists of the record of the case below and of the statement, which is in the nature of a bill of exceptions. It has, therefore, long been considered the law of this Court, that only those points which were ruled below and presented in the bill of exceptions can be heard here, unless they appear upon the record proper. A due attention to this rule would save much time, and show that we cannot be governed or influenced by the ore tenus incidents of the trial. In law, the exceptions of the party aggrieved must appear upon the bill of exceptions, because he is the objector. The statement in this case contains the exceptions of the prisoner. The first is, that the prosecuting officer asked a witness, the daughter of the prisoner, whether her father and mother did not quarrel? The counsel for the prisoner objected to the question, insisting that the witness should be asked what they quarreled about. The court observed that they could cross-examine as to the cause of the quarrel. In this there was no error in law. The question on the part of the State was to show the terms upon which the prisoner and his wife lived, and it was proper that the explanation of the cause of their quarreling should come from the prisoner — the object of a cross-examination being to bring out everything calculated to explain that which is given (443) in chief. But the counsel in his argument here insisted that the judge below misunderstood his meaning, and assumed that he intended to admit that they did quarrel, and that he only asked to know what they quarreled about; whereas he meant that the witness should state what was said by the parties, that the jury might decide whether what passed amounted to a quarrel or not. In giving the prisoner the benefit of this construction, we are of opinion there was no error, because the word quarrel is a common English word, with a meaning as well known as fighting, and it is certainly as competent for a witness to be asked if two men upon a particular occasion fought, and what they fought about.
The second exception that the court was required to instruct the jury that if the deceased did come to her death by the hands of the prisoner, if it were by breaking her neck, he could not be convicted upon this indictment, which charged she came to her death by suffocation or strangling. The case states that it was so argued by the counsel to the jury, but that the court was not asked so to charge, but did charge, that the jury must be satisfied beyond a reasonable doubt that the deceased came to her death by strangling or suffocation. The court could not charge as required, for the reason that there was no testimony that the neck was broken, and a judge is never bound to charge upon a hypothetical case. S. v. Benton, 19 N.C. 196.
The fourth exception agrees in substance with the statement of the case. It admits that Dr. Williams stated that from his examination he was of opinion the neck was not broken, and the case states that he swore positively it was not broken.
The third, fifth, and sixth exceptions stand upon the same ground, and if sustained, would certainly entitle the prisoner to a venire de novo. But they are all negatived by the statement of the case. The only difficulty presented to us as to these exceptions is the manner in which they are presented. Where exceptions are taken to the manner in which the court has put the case before the jury, either upon a point of law or upon the facts, the judge must necessarily be at liberty to state what he did rule, and how he did charge. Justice to all parties requires this; otherwise the case would always be at the mercy of the excepting (444) party. The statement which accompanies every appeal in a case at law, is not strictly a bill of exceptions, but is considered in the nature of one, so much so that we are not at liberty to look out of it, or consider any exception not taken below and stated in it. Ring v. King, 20 N.C. 301; Bank v. Hunter, 12 N.C. 100; S. v. Gallimore, 29 N.C. 147. In the case here the judge has made a statement of the evidence as it applied to each exception, and the manner in which he placed it before the jury. In each respect it essentially differs from the facts as alleged in the exceptions third, fifth, and sixth. By which shall we be governed? Certainly by the statement made by the presiding officer, whose duty it is to give a full and fair statement of all that relates to the exceptions, while it is the duty of the excepting counsel to except only to so much of the matter as will subserve his client's case. Taking this principle as our guide, the charge below was in no particular that we can discover, in violation of the duty as a judge, as required by the act of 1796 — which requires him to state the facts in a full and correct manner. But in doing this he is not confined to the words of the witness, but may state all the attendant circumstances as they appeared in evidence, and show wherein they are contradictory, and how reconcilable, and draw the attention of the jury to the reasonable inferences that are to be drawn from them. It is only where the exhibition of the testimony is partial and unfair, that the party has a right to complain; and unless such clearly appears to the court, it cannot interfere. McNeill v. Massey, 10 N.C. 91; S. v. Morris, ibid., 388; Paschall v. Williams, 11 N.C. 292.
We cannot perceive in the case any error committed by the presiding judge, calling upon the Court to disturb the verdict of the jury.
A motion is also submitted in arrest of judgment. The reason assigned is insufficient. From the record it appears that the prisoner was at the bar during the selection of the jury; for it shows at the commencement of the trial, that the prisoner being brought to the bar in the "custody of the sheriff," etc.; after this is the drawing of the jury; and the jury in their verdict say that they find the prisoner at the bar, etc., and after it is this entry: "The prisoner is thereupon remanded to jail." It thus manifestly appears that the prisoner was present (445) at the bar when the jury was drawn, and during the whole time of the trial. The entry, after he was brought into court — "it is therefore ordered that he be again committed to his custody" — that is, the custody of the sheriff, cannot alter the record as to his actual presence. Such an order was right and proper, to make the sheriff responsible for his person, so as to prevent an escape, and supersede the necessity for a fresh order to that effect every time the court should take a recess, which often occurs on the trial of a capital case. It is true the prisoner was in the custody of the law, and the court had a right to so order as that he should be forthcoming to hear his verdict and the judgment.
We are unable, upon examination of the whole case, to perceive any error in the charge of the judge to the jury; and the reason in arrest of judgment is not valid. And this opinion will be certified to the Superior Court of Lincoln that they may proceed according to law.
PER CURIAM. Judgment affirmed.
Cited: Brown v. Kyle, 47 N.C. 443; S. v. Chavis, 80 N.C. 357; Bank v. Graham, 82 N.C. 489; S. v. Leitch, ibid., 539; S. v. Randall, 88 N.C. 611; Phipps v. Pierce, 94 N.C. 515.