Opinion
(June Term, 1863.)
1. It was held to be error in a court, in the trial of a criminal case, to order that an affidavit, made by the defendant, for the continuance of the cause should be read as evidence for the affiant, with leave for the State to offer testimony in contradiction (the defendant objecting and insisting on a continuance).
2. Upon the conviction of a prisoner in a capital case, the sentence of the court must be carried into execution by the sheriff of the county where he was tried, and it was held error to order it to be done in the county whence the cause was removed, or by the sheriff of that county.
INDICTMENT for murder, tried before Saunders, J., at Fall Term, 1862, of RUTHERFORD.
The cause had been removed, on the affidavit, from Burke. The defendant offered an affidavit stating certain facts as the ground for a continuance of the cause, on which the court decided "that the cause should be continued unless the solicitor for the State would consent to have the affidavit read as evidence, and he should be at liberty to offer testimony in contradiction. The defendant excepted to this ruling. The solicitor accepted the terms, the trial was had, the affidavit was read in behalf of the prisoner, and the State produced evidence controverting the facts stated in the affidavit. There was a verdict against the prisoner for murder. The court adjudged that the defendant be taken to the county of Burke, from whence he came, and kept in close confinement until Friday, 2 January, 1863, when he be taken to the place of public execution, and then be hanged by the neck until he be dead, and the sheriff of Burke is to carry this sentence into effect."
Attorney-General for the State.
No counsel for defendant.
In all criminal prosecutions every man has a right to be informed of the accusation against him, and to confront the accusers and witnesses with their testimony, and shall not be compelled to give evidence against himself. Declaration of Rights, (143) sec. 7.
By the common law the witnesses must be examined in the presence of a jury, so as to enable the jury the better to pass on their credit by observing their looks, manner, etc.
In the trial of civil cases this rule of the common law is departed from, under certain circumstances, and depositions are allowed to be read where the attendance of the witnesses cannot be procured. But in criminal cases depositions are never read, either for or against the prisoner, and the common-law mode of trial is strictly adhered to. Where an affidavit is offered for the continuance of a cause and is considered sufficient, the cause will be continued, unless the opposite party will admit the facts set out in the affidavit to be true, for, if the statement of the witness is to be controverted, the party offering the testimony has a right to have the witness examined in the presence of the jury. This practice has never been departed from, so far as we are informed, until the present case, and we can see no principle upon which, in the trial of a capital case, this departure from the well-settled mode of trial can be allowed; indeed, it violates the clause in the Bill of Rights which secures to every man the right to confront the accuser and witnesses with other testimony.
Another departure from a well-settled practice appears in the record in this case, which the Court feels it to be a duty to correct. The judgment is, "that the prisoner be taken to the county of Burke, from whence he came, and kept in close confinement until Friday, 2 January, 1863, when he will be taken to the place of execution," etc., and "the sheriff of Burke County is to carry this sentence into effect," etc.; "ordered that the sheriff of this county (Rutherford) safely deliver the prisoner to the sheriff of Burke County, to be kept in the jail of Burke County," etc.
When the cause was removed to Rutherford County for trial, the prisoner was in possession of the court there, and the sheriff of (144) Rutherford then had charge of him; neither the court nor the sheriff of Burke had any further concern with the cause of the prisoner, and we can see no ground on which, after conviction, the judge could order the sheriff of Burke to carry the sentence into effect. The fact that the prosecution had originated in the county of Burke, after the removal to Rutherford, gave the judge no more power to give the power to the sheriff of Burke than to the sheriff of any other county. The sheriff of Rutherford then had the prisoner in his charge, and was to execute the sentence of the law.
PER CURIAM. Error.
Cited: S. v. Cunningham, 72 N.C. 478.