State v. . Rogers

17 S.E. 297, 112 N.C. 874

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

MacjRae, J.

(after stating the facts): There is nothing in the case to indicate that the prisoner was not allowed a reasonable time to send for and advise with counsel, as suggested in the first ground of exception to the admissibility of his statement upon preliminary examination before the committing magistrate. If it had been made to appear that he had asked and was denied such time and opportunity a serious question might have arisen as to the admissibility of his statements.

The fact that the prisoner was tied during his examination would not in itself constitute a valid objection to the evidence, unless it appeared that he was tied in such a manner as to produce pain or to tend to induce or extort from him a confession. State v. Cruse, 74 N. C., 491.

Wo do not commend the practice, however; if such there be, of keeping the prisoner shackled or tied while before the committing magistrate on the preliminary examination. The law should bo the same there as upon his trial; the dictates of humanity would require that unless there should be some strong reason to the contraiy he should be freed from such physical restraint. In a note to Wharton’s Or. PI.,& Pr., see. 699, quoting from 2 Hawks, ch. 28, and from other authorities, it is well said in regard to his arraignment : “ The prisoner is to be brought to the bar without irons, shackles or other restraint, unless there be danger of escape; and ought to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no terror or uneasiness other than what proceeds from a sense of his guilt or the misfortune of his present circumstances.”

The statute, section 1146 of The Code, is in these words: “At the commencement of the examination the prisoner shall be informed by the magistrate that he is at liberty to refuse to answer any question that may be put to him, and that his refusal to answer shall not be used to his prejudice in any stage of the proceedings.”

The testimony of the committing magistrate, as set out above, shows a substantial and full compliance with the requirements of the law. We do not understand it to be necessary that the magistrate shall use the precise words of the statute in giving the prescribed caution; indeed, it might be better in some instances to give it in simpler language. It should always be plain enough to inform him of his rights in the premises.

We find another exception noted: “Counsel proposed to read to the jury in the course of the argument from ‘Rule’s Toxicology,’ etc., which the Court declined to permit him to do, the same not having been offered in evidence, and not being under oath, and no witness having been examined concerning the same. The defendant excepted to this ruling of the Court.”

The book itself could not have been offered in evidence, neither could it be read by counsel as part of his argu ment. The matter was very fully discussed and explained by Mr. Justice Bynum in Huffman v. Click, 77 N. C., 55.

We have carefully examined the record in this case and ñnd

No Error. Judgment Affirmed.