State v. . Anderson

92 N.C. 732

• Court: Supreme Court of North Carolina
• Decided: February 5, 1885
• Status: Published

Opinion

Asi-ib, J.

(after stating the facts). There were a number of exceptions taken by the prisoner to the rulings of the court in admitting and rejecting evidence, and to the charge of the court to the jury, and the refusal to give the instructions asked by the prisoner.

The first exception: Stewart, a witness for the State, had testified that he was at the mine on Sunday evening when the prisoner and Ray arrived. Soon after their arrival, he went home, leaving Horton alive at the mine, but, within a few minutes after getting home, he heard the report of fire-arms in the direction of the mine and hurried back and found Ed. Horton lying dead in a path, at about the edge of one of the dumps, shot through his right hand and in his head near the edge of his forehead. Witness saw no signs of a scuffle that night and none the next day, though there had been a good many people passing about.

The solicitor then proposed to show by the witness, the condition in which he found the persons he had left at the mine, on his return, botli inside and outside of the mine. The solicitor proposed to show by the witness that he found in the lower shaft, two of them dead or dying, a third wounded, and Horton lying dead on the outside, as tending to show the motive and cause of the difficulty, and in connection with other witnesses to be offered, to explain the motive of the prisoner, and to show a conspiracy between the prisoner and Ray to take possession of the mine. The counsel for the prisoner resisted the admission of the evidence and contended that the proposed evidence was incompetent; that the prisoner was charged with the killing of Ed. Horton, and his guilt in killing him cannot be established by the proof of another crime; that the evidence must be confined strictly to the point at issue. This, as a general rule, is unquestionably true. But there are exceptions, one of which is, where two or more persons enter into a conspiracy to do an unlawful act, whatever is done by either of them is evidence against the other, if done in furtherance of the common object of the conspiracy — Roscoe Or.. JEv., 387 — and the least degree of consent or collusion between the parties to an illegal transaction makes the. act of one of them, the act of the other. 2 Wharton’s Law of Evidence, §1205.

The same .principle applies to declarations made by one conspirator in furtherance of the common design, so long as the conspiracy continues, though made in the absence of one of them. Ibid, supra. The State alleged that there was in this case a conspiracy between the prisoner and Ray to illegally dispossess Miller and Buchanan of the mine. In such case, the regular mode of proceeding is to establish the conspiracy in the first place, by proof, and then offer the acts and declarations of any one of the conspirators against the others. Bat this rule is often departed from, though it is an inversion of the order, for the sake of convenience, and the prosecution allowed either to prove the conspiracy, which makes the acts of the conspirators admissible in evidence against each other when done in furtherance of the common object, or he may prove the acts of different persons, and thus prove the conspiracy. Roscoe Cr. Ev., 385. Mr. Greenleaf, Vol. 1, page 127, maintains the same rule in the following passage: “Sometimes for the sake of convenience, the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecution undertaking to furnish such proof in a subsequent stage of the cause. But this rests in the discretion of the judge, and is not permitted, except under particular and urgent circumstances, lest the jury should be misled to infer the fact, itself of the conspiracy from the declarations of strangers; and here also care must be taken, that the acts and declarations thus admitted be those only which were made and done during the pendency of the criminal enterprise and in furtherance of the objects.” And see also State v. Jackson, 82 N. C., 565. This was the course pursued in this case. The solicitor announced that he offered the evidence in connection with other testimony to be adduced, to show a conspiracy between the prisoner and Ray to take illegal possession of the mine, and the Judge, in exercise of his discretion, allowed it.

Ex. 2. The solicitor proposed to ask the witness Stewart, who was in the actual possession of the mine and working it just before the killing. He proposed to prove that Cebe Miller and Milton Buchanan, deceased, and others were in the actual possession of the lower shaft at the time of the homicide; and of the upper shaft also, until the Saturday night previous, and continuously up to that time, wdien Ray claimed to have taken possession.

This testimony was offered to be taken in connection with the testimony of the witness Hoskins, theretofore examined, who had testified that the prisoner on Sunday evening, while in Bakers-ville, told him that, if he should remain at the mine that week, he wanted him to come out to see him and take a hunt, and other testimony to be thereafter offered, that prisoner and Ray both came armed, and had a difficulty near the lower shaft, as tending to show an unlawful purpose on the part of the prisoner to commit a trespass, and that he did commit a trespass.

We can see no objection to the admission of this testimony for the purpose for which it was offered.

Ex. 3. The prisoner’s counsel had asked the witness Stewart if Reuben and Hardy Sparks were not in possession of the upper shaft before Ray and prisoner arrived at the mine on Sunday evening, and if Ray, prisoner, and Reuben Sparks, were not in the possession of the upper shaft when the witness left to go home, just before the homicide. This was asked with the view, as expressed at the time, of showing that Ray, prisoner and Reuben Sparks were in the joint possession of the upper shaft at the time the witness left. The Court held that after the prisoner had brought out the fact that Reuben and Hardy Sparks were at the upper shaft, to show possession in the prisoner and Ray, it was competent to prove the declarations of Sparks in reference to the possession of Ray.

The witness Arthur Buchanan, who was then under examination, testified that either Reuben or Hardy Sparks said to him that they “ had possession and were going to hold it.”

The declaration of Sparks was clearly admissible upon the ground taken at the time by the solicitor, that testimony had been offered to show a conspiracy to take possession of the mine, between the prisoner, Ray, Hardy and Reuben Sparks, and that the declaration of either was competent, and whatever defect there may have been in the testimony offered up to that period of the trial upon the point of conspiracy, it was fully supplied by the subsequent testimony.

Ex. 4. On the cross-examination of the witness Putnam, the prisoner proposed to show that when he started down to the lower pit, while Ray and Miller were sitting there, he said, “ If Bailey shows title, I will have nothing more to do with it.” The Court, upon objection by the solicitor, refused to admit the declaration. • We cannot see how the rejection of this evidence could have worked any possible prejudice to the prisoner. Conceding it was admissible as part of the res gestee, its reception would have operated to his prejudice instead of his benefit, for it could have had no other effect than an acknowledgment that he did have something “to do with it,” evidently referring to the taking the possession of the mine, and there is no inference to be drawn from the declaration that it was his intention to have nothing more to do with it then and after that time, but after Bailey should show that he had title, and Bailey was not expected to make any exhibition of his title until the next day. It did not indicate any intention of abandoning the illegal possession which he had acquired as trespasser. So far from that, in less than five minutes after his claimed declaration of peace,- he shoots to the death, one of those who were in the rightful possession of the mine.

The error complained of not being prejudicial to the prisoner, it is no ground for a venire de novo. State v. Frank, 5 Jones, 384.

Ex. 5. The solicitor proposed to prove by the witness Buchanan, what occurred in the lower shaft, insisting that it had been proved that Ray and the prisoner had left Bakersville together; that Ray had a gun; that prisoner had ordered cartridges should be sent out for a gun if he should remain during the week; that they claimed possession of the mine; that Miller and Buchanan had been previously working at the mine, and had actual possession of the lower shaft, and were then in the shaft; that Ray had knocked Miller into the shaft, after cocking his gun, and this in about fifty feet and in sight and hearing of the prisoner ; that when Ray cocked his gun, and before he fell into the pit, the prisoner started from the upper shaft and came within five or six feet of the lower pit; that the lower pit was only ten or twelve feet deep, and that the persons inside the pit could hear what the prisoner and deceased said to each other. He insisted that it was competent to show what was said and done inside the pit, not only as part of the res gestee, but as evidence of a conspiracy between Ray and the prisoner to commit an unlawful act, in taking forcible possession of the mine, and the motive the prisoner had to aid Ray, by preventing Horton from going into the shaft to the assistance of his comrades. The Court sustained tjie view taken by the solicitor, and over-ruled the exceptions of the prisoner and admitted the testimony. The witness then proceeded to testify to what was said and done inside the pit.

In this ruling of the Court there was no error. The conspiracy had been established by the proof, and it was perfectly competent for the Court to hear testimony of what was said and done by Ray in the pit, in furtherance of the common purpose, or what any of those engaged with him in the pit in his presence said or did, as a part of the res gestee. But the prisoner’s counsel contended that the exclamation of Ray while in the pit, and held down by Miller and Burlison, “there, Waits (meaning the prisoner) has killed some one,” was not competent. To make it so, “ two things must concur, first, there must be a common purpose between the declarant and the person against whom the declaration is used, and further, the declaration must be in furtherance of such common purpose.” That is true.

And here there was the common purpose of taking and holding illegal possession of the mine, and it was evidently said in furtherance of that purpose, by drawing the attention of those who held him, that they might release their hold on him, so that he might use his pistol, which he proceeded to do with fatal effect, as soon as their hold upon him was relaxed. The exclamation was also confirmatory evidence of the fact of the conspiracy, and was consequently prompted by the expectation on the part of Ray, that, if he should get into a difficulty, the prisoner, by reason of their relations to each other in the common enterprise, would stand by him. He could have no other reason for supposing it was the prisoner who had killed some one.

Ex. 6. Prisoner’s counsel proposed to ask the prisoner while under examination in his own behalf, what Nay said to him before leaving Bakersville that induced him to go to the mine. Upon objection by the solicitor the court held that the prisoner would be allowed to testify as to his motive or purpose in going to the mine, in order to rebut proof offered by the State to show his motive or an unlawful purpose, but that the prisoner would not be allowed for that purpose to state the declarations of Nay. There can be no valid objection to this ruling. There is no principle of evidence upon which it was admissible. The only ground upon which such a declaration could be admitted, would be where it formed a part of the res gestee. But to constitute res gestee there must be a thing done — some net which may be explained by declarations made while the thing or act is being done or transacted. But there was nothing of that sort here. The declaration proposed to be proved was made before the parties had started on their unfortunate enterprise.

Ex. 7. The solicitor offered to prove that on Saturday uight immediately preceding the Sunday on which the homicide was committed, Nay attempted to “smoke” out of the mine, Miller and others, who were in the lower shaft, by building a fire near the mouth of a tunnel leading into the pit, and forcing the smoke into it. He threw dirt into the pit, with the view, he said, of scaring them. The evidence was offered to show that Miller and Nay were in the actual possession of the lower shaft at that time, and to contradict what the prisoner said Nay had told him about having peaceable possession of the mine. The prisoner’s counsel insisted that this evidence was incompetent, that it could only be admitted upon the ground that it was an act in furtherance of a common design between the prisoner and Nay to take possession of the mine at any hazard, and there was no sufficient evidence to connect the prisoner up to that time with any such design. But we think the prisoner’s testimony was fully sufficient to show a common purpose between him and Nay to take possession of the mine, even if no other evidence had been offered on that point. He stated that he had heard that the mine was valuable; had heard four or five times before that Miller and Buchanan were working the mine; had talked to a party about taking possession of it before he went to see Ray; did not persuade Ray to come to the mine; his wife did not want him to go. He told Ray that Reuben Sparks said he had a good title to the mine, and Bay ley had none; that he had business in Madison county, and was at Ray’s house on Monday or Tuesday before the homicide. Ray came over from Madison county with him to his house, on Thursday. He thinks he sent a message, perhaps wrote a note, to Sparks on Friday. Ray left his house on Friday, and returned to Bakersville on Saturday, where he met him. Can it be doubted by any one after hearing this statement by the prisoner, that he and Ray had formed the purpose of taking the possession of the mine on Saturday before the homicide ? But if that were not so, there is ample proof of the conspiracy after the occurrence of Saturday night, and acts of Ray on that night were competent evidence against the prisoner, for it makes no difference at what time the party accused entered into the conspiracy or combination, because any one who agrees with others to effect a common illegal purpose, is generally considered in law as a party to every act which either had been done or may afterwards be done by the conspirators, in furtherance of the common design. Taylor’s TJv., §529.

After a careful perusal of the instructions asked, and those given by the Court, we do not think the prisoner has any cause for complaint. The instructions given to the jury were a substantial compliance with those asked by the prisoner, in fact, were in some instances, more favorable to him than was warranted by the facts. But the prisoner contended that there was error in the refusal to charge the jury, “that if the first shot was fired under a reasonable apprehension of great bodily harm, the subsequent shots would not make the prisoner guilty, if fired under like apprehension.” The request was substantially complied with in the fourth instruction given by His Honor to the jury, which was as follows: “If the prisoner went clown to the lower shaft for the purpose of separating persons there engaged in a breach of the peace, and did not enter into the fight willingly, he was without fault in bringing on the fight; and if he went down for that purpose and did not fight willingly, but acted only on a well grounded apprehension of great bodily harm in shooting deceased, then the prisoner would not be guilty.”

The prisoner’s counsel further insisted there was error in refusing to give the sixth prayer for instruction, namely, “ If the prisoner entered upon the premises in a peaceable manner, and the deceased, acting on an old grudge, made an assault upon him of a deadly character, the slaying would be justifiable.”

The prisoner’s counsel contended that the prisoner had the right to enter into the mine, and cited authorities to the effect, that if the party who enters is the owner, he gains both seizin and possession, although the claimant of the adverse interest is at the time actually upon the premises. But, unfortunately for the prisoner, the principle has no application to his case. He was not the owner, neither he, nor Ray, nor Sparks. Neither had any pretence of a title as appears from the record. It is true Ray showed a paper to Miller while in the mine, and said he had a deed for the mine, but it was evidently a sham, for if he had had such a deed, the prisoner would certainly have produced it or a copy on the trial, as Re had a right to do, if there was such an instrument. State v. Shepherd, 8 Ired., 195.

But the prisoner and his confederates, Ray and the two Sparks, so far from being owners or having any title to the property, as appears by the record were mere tort feasors, and Miller and Buchanan had the right not only to defend their possession, but to use the necessary means for their expulsion from the premises.

The grounds assigned by the prisoner’s counsel for the arrest of the judgment are quite as untenable as the exceptions taken to the charge of the court. There were no exceptions in the grounds assigned for the arrest of the judgment to the form of the affidavit for removal, but only that Yancey county was embraced in the affidavit and order of removal. If the affidavit for the removal from the county of Mitchell was sufficient, the exclusion of Yancey in the affidavit and order could not vitiate the order of removal. It need not have been stated in the affidavit. The sole object of the removal is to secure a fair and impartial trial, and if it should be made to appear to the court, that Yancey county was obnoxious to the same objection as Mitchell, the court ought not to have moved the case to that county, no matter from what source it obtains the information, whether by affidavit or otherwise. The county to which the cause is removed, always lies in the discretion of the court, provided it be an adjacent county.

It is no ground for arresting the judgment that there were two transcripts of the case sent from Mitchell to Caldwell, although the first was defective and the second transmitted without a writ of certiorari. The writ of certiorari is only issued when there is a defect in the record, which is discovered by the court, or brought to its notice. When the clerk sends a defective record, it is not a compliance with the order, and he may send another. If the transcripts are contradictory, the contradiction may be reconciled by an inspection of the original record by the court to which it is removed, but when they are not contradictory they form but one copy and both may be used by the court. State v. Collins, 3 Dev., 117.

The last ground of arrest taken by the prisoner’s counsel cannot be sustained. The record shows that the prisoner was arraigned, and then following immediately thereafter before any order remanding prisoner to jail, the affidavit was offered and the order for removal made — it sufficiently appears by a necessary implication, that he was present when the order was made. State v. Craton, 6 Ired., 164; State v. Chavis, 80 N. C., 353, and cases there cited.

Our conclusion, after a careful examination of the record in the case, in view of the very grave importance of our decision to the prisoner, is that’ there is no error.

This opinion must be certified to the Superior Court of Caldwell county that the case may be proceeded with in conformity to this ojfinion and the law of the land.

No error. Affirmed.