State v. . Rogers , 93 N.C. 523 ( 1885 )

There was no error in this ruling. It is founded on a principle too well and too long settled to admit of a question. This was the only instruction asked by the prisoner before the case was submitted to the jury, but after the verdict his counsel filed a number of exceptions to the charge of his Honor, nearly all of (530) which were taken too late, but there were one or two that we think are worthy of our consideration, especially "that the charge consists of abstract propositions of law, without making application of them to the facts of the case," and "he did not present the case in every aspect, but only in the aspect most unfavorable to the defendant, in singling out Lassiter's testimony, which was contradicted by most all the witnesses, and charging the jury if they believed Lassiter's testimony the defendant was guilty of murder." In considering the instructions given by his Honor to the jury, the material and prominent question presented is, Was it such a charge as comes up to the requirements of the law in a case of such serious and vital importance to the prisoner? The charge was very long, and was a carefully prepared exposition of the law of homicide.

We find no particular fault with the principles of law as enunciated, but the charge is decidedly obnoxious to the objection of failing to apply the principles to the evidence in the case. For throughout the charge there is no particular application to the facts of the case until at the conclusion a reference is made to the testimony of Lassiter, a witness on the part of the State, which is as follows: "If the prisoner killed the deceased, and you are satisfied that it was done in self-defense, you will acquit him. If the prisoner took the life of the deceased unlawfully, and you are satisfied it was done without malice, then it will be your duty to return a verdict of guilty of manslaughter; and if you should find the prisoner killed the deceased with malice aforethought, your duty will be to return a verdict of guilty of murder. If Wilkins Powell was holding the deceased and the prisoner, not in the furor brevis, came around behind the crowd and inflicted the blow, under the circumstances as testified to by the witness Lassiter, then it is murder."

The witness Lassiter was contradicted by several other witnesses, both on the part of the State and defendant, who testified to a state of facts which, if believed by the jury, made out a case only of manslaughter; but instructions were not asked on that point, and it is held as a general rule that an omission on the part of the (531) judge to charge the jury on a certain point is not error, unless he is requested to do so. S. v. Scott, 26 N.C. 409; S. v. O'Neal,29 N.C. 251. But when the judge in his charge to the jury fails to "state in a precise and correct manner the evidence given in the case, and explain the law arising thereon," as he is required to do by sec. 413 of The Code, there is error. His Honor has failed to comply with the requirements of this statute. There are so many decisions in our Reports construing this statute, and pointing out the duty of the courts under its provisions, that we are at a loss to conceive why a judge should fail to comply with its directions. It is held under the requirements of the statute to be the duty of the judge in charging the jury "to eliminate the material facts of the case, array the facts on both sides, and apply the principles of law to each, so that the jury may decide the case according to the credibility of the witnesses and the weight of the evidence." S. v. Dunlop, 65 N.C. 288; S. v. Jones, 87 N.C. 547. And in S. v. Matthews, 78 N.C. 523, the Court say: "We think he (the judge) is required in the interest of human life and liberty to state clearly and distinctly the particular issues arising on the evidence and on which the jury are to pass, and to instruct them as to the law applicable to every state of facts which upon the evidence they may find to be the true one. To do otherwise is to fail to declare and explain the law arising on theevidence, as by the act of Assembly he is required to do." C. C. P., sec. 237; The Code, sec. 413.

But there is still another error in the charge of his Honor, which is the ground of the defendant's second exception. It consisted of the instruction to the jury "that if Wilkins Powell was holding the deceased, and the prisoner, not in the furor brevis, came around behind the crowd and inflicted the blow, under the circumstances testified by the witness Lassiter, then it is murder." This part of the charge was prejudicial to the prisoner by giving undue prominence to the testimony of this witness, and was therefore calculated to mislead (532) the jury by making an impression upon their minds, as it probably did, that it was his Honor's opinion that more weight was to be given to his testimony than to the other witnesses, whose testimony was in direct conflict with his. For in stating that the prisoner came around the crowd and struck the deceased, and that Powell had hold of Peebles when the prisoner struck him, he is expressly contradicted by Powell, who testified that he did not take hold of Peebles until after he had thrown the prisoner back, and he is corroborated in this statement by McSparrin, Boyce, Person, Fann, and Martin, and all of these witnesses contradicted his statement that the prisoner came around the crowd and attacked the deceased.

They concurred in stating that Peebles advanced upon the prisoner, after the first engagement, or went to meet him, and struck him with his left hand.

The instruction was in effect telling the jury, "If you believe the testimony of the witness Lassiter the prisoner is guilty of murder." He had no right to give such a charge. It was clearly error. A judge has no right thus to single out one witness and instruct the jury if they believe him they should find in a particular way, and more especially is it erroneous when the testimony is conflicting and there are divers witnesses. Andersonv. Steamboat Co., 64 N.C. 399; Jackson v. Comers., 76 N.C. 282; Brem v.Allison, 68 N.C. 412.

And when there is a conflict of testimony which leaves a case in doubt before a jury, and the judge uses language which may be subject to misapprehension, and is calculated to mislead, this Court will order avenire de novo. S. v. Bailey, 60 N.C. 137. Accordingly a venire de novo is ordered in this case, and to that end this opinion must be certified to the Superior Court of Northampton County.

Error. Reversed.

Cited: Holly v. Holly, 94 N.C. 99, 100; S. v. Jones, 97 N.C. 474; S.v. Boyle, 104 N.C. 822; Farthing v. Dark, 109 N.C. 299; S. v. Rollins,113 N.C. 734; Harris v. Murphy, 119 N.C. 37; Withers v. Lane. 144 N.C. 190;S. v. Watkins, 159 N.C. 485; Speed v. Perry, 167 N.C. 128; S.v. Rogers, 173 N.C. 758; S. v. Cline, 179 N.C. 705; S. v.Moore, 192 N.C. 210; S. v. Rhinehart, 209 N.C. 154.

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