Opinion · Supreme Court of North Carolina
State v. O'neal.
29 N.C. 251
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1847-06-05
- Topic
- general
Nash, J. It is the privilege of parties to be heard at the Bar through their counsel, and a wide latitude is given to the latter in making their argument to the jury. Nor do we know of any obligation on a Judge to interrupt counsel in stating their conclusions either of law or fact. It is the right and the duty of the presiding Judge, if counsel state facts as proved, upon which no evidence has been given, to correct the mistake, and he may do it at the moment or wait until he charges the jury, perhaps the most appropriate time. In criminal charges the prisoner’s character cannot be put in issue by the State, unless he open the door by giving testimony of it . — nor is it a conclusion of law, that, from his silence, the jury are to conclude he is a man of bad character.
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2. In criminal charges the prisoner's character cannot be put in issue by the State, unless he open the door by giving testimony to it. But it is not a conclusion of law that from his silence the jury are to believe he is a man of bad character.
3. An omission on the part of a judge to instruct the jury on a particular point, if no instruction be asked from him on that point, is not error.
4. In an indictment for altering mark of a cattle-beast it is not necessary to set forth the original mark nor in what manner the alteration was made.
The prisoner is indicted for altering the mark of a cow belonging to Martha Benson. The words in the indictment describing the offense are, "unlawfully, knowingly, and willfully did alter the mark of a certain cow, the property of Martha Benson," charging the intent. No evidence was offered by the defendant of his good character. The Attorney-General, in the course of his argument to the jury, stated that the State was not at liberty to give evidence of the prisoner's character, but that the prisoner had a right to do so; that he had not availed himself of the privilege, and, from the absence of such testimony, was proceeding to argue that he was a man of bad character, when he was interrupted by the prisoner's counsel, who insisted that as no evidence had been offered as to character, the Attorney-General had no right to comment upon it. The court overruled the objection and permitted the Attorney-General to proceed with his argument. The prisoner was convicted and a rule for a new trial obtained because the court permitted the Attorney-GeneralPage 180(252) to make to the jury the remarks he did on the character of the prisoner. The rule was discharged. The defendant then moved in arrest of judgment because of the insufficiency of the indictment in not charging the particular mode in which the mark was altered. The motion was overruled and judgment pronounced, from which the prisoner appealed.
The motion in arrest of judgment cannot avail the defendant. The indictment uses the language of the act. But it is true that this, in all cases, is not sufficient. Thus in an indictment under the statute for stealing a slave, the name of the slave must be set forth, and so in an indictment for forgery the instrument forged must be set forth; and it is a general rule "that the special matter of the whole fact ought to be set forth with such certainty that it may judicially appear to the court that the indictors have not gone on insufficient premises," Hawk. P. C., Book 2, ch. 55, sec. 57; that is, that the facts set forth amount to a criminal offense, as charged. The authorities to which our attention has been directed by the counsel for the prisoner sustain his proposition, but not his objection. The objection is that the indictment does not set forth the mark of Martha Benson, the owner of the cow, nor the (254) mark into which the defendant put her; at least, as we understand it, the language of the objection is that the indictment does not charge the particular mode in which the mark was altered. Pursuing the words of the statute is sufficient, except in cases where the subject of the indictment cannot be brought within the meaning of the statute without the aid of extrinsic evidence. There is an indictment on the statute, 37 George III., ch. 70, making it felony toendeavorto seduce a soldier or a sailor from his duty: it is sufficient to charge anendeavor, without setting out the means employed.Rex. v. Fuller, 1 Bos. Pul., 180. Theendeavorto seduce, without any respect to the means, is the gist of the offense. Arch. Cr. Pl., 52. Now, in the case before us it is of no importance what Mary Benson's mark may be; it is made criminal by the statute knowingly to alter it, with intent to defraud, and it is a matter of no importance into whose mark it is altered; it is the willful alteration that constitutes the offense. In addition to this, the indictment conforms to the precedents heretofore in use in this State and sanctioned by this Court. InS. v. Davis,24 N.C. 153, the indictment is for effecting the mark, and the offense is described, as in this, by simply pursuing the words of the act. The mark of McConnell, the owner of the animal, is not set out nor is the mode of effacing it. It is true that the motion in arrest of judgment did not rest on the objection now made; but the attention of the Court was drawn to the sufficiency of the indictment, and in every case the Court looks into the record, and, if error is detected, then we do not wait to have it brought by counsel to our notice. It cannot be supposed, then, that this objection, if a sound one, would have escaped the observation of the Court. It has, indeed, by some beenPage 182supposed that too much astuteness is exhibited in discovering errors in records sent here. If it be desirable that the administration of (255) the law should be kept steady and uniform, that the forms and precedents established by the wisdom of our predecessors should as rarely as possible be departed from, it should be the object of every Court to standsuper antiquas vias. S. v. Davis, then, may be considered a precedent for the indictment we are considering.
We are of opinion there was no error committed by his Honor on the trial below, on either point decided by him.
PER CURIAM. No error.Cited: Arey v. Stephenson,34 N.C. 38;S. v. Cardwell,44 N.C. 248;Ward v. Herrin,49 N.C. 24;Boykin v. Perry, ibid., 327;S. v. Whit,50 N.C. 230;S. v. Vinson,63 N.C. 340;S. v. Deal,64 N.C. 277;S. v. Smallwood,78 N.C. 561;S. v. Austin,79 N.C. 627;S. v. Hardee,83 N.C. 621;Terry v. R. R.,91 N.C. 242;Branton v. O'Briant,93 N.C. 104;S. v. Rogers, ibid., 531;S. v. Debnam,98 N.C. 718;S. v. Bailey,100 N.C. 534;McKinnon v. Morrison,104 N.C. 363.