Opinion
December Term, 1838.
Homicide — Record.
1. Where the record of an indictment for murder set forth the indictment, the answer of the prisoner to the inquiry how he would acquit himself, the reply of the Attorney-General, the order for a jury to come, and then proceeded, "and afterwards in the said case, State v. Thomas H. Christmas, indictment, murder, the following jury being sworn and empanelled, to wit, etc., who say that the prisoner, Thomas H. Christmas, is guilty of the felony and murder in manner and form as charged in the bill of indictment": It was held, that the record showed, if not in express terms, yet by necessary implication and with the requisite certainty, that the jury was sworn to try the truth of the matters charged in the indictment.
2. In capital cases, though it is usual to make up an issue with the prisoner on his plea of not guilty, yet it is not necessary to do so. The issue is immaterial, for the trial is in the nature of an inquisition, in which the jury is charged to inquire of the truth of the accusation contained in the indictment.
3. It would probably not be error if the record were to set forth the verdict as a finding on the issue joined between the State and the prisoner, where the issue is joined on the truth of the indictment, but such is not the regular form of stating it.
4. In a court of supreme original jurisdiction the law always presumes, until the contrary appears, that the proceedings which the record of that court shows to have been had, were, as concerns form and manner, correctly done.
5. It is enough that the record in an indictment for murder be certain to a certain intent in general. It is not necessary that it should be certain to a certain intent in every particular, so as absolutely to exclude every possible conclusion, all argument, presumption, or inference against it.
THE prisoner was convicted of murder at Warren, on the last circuit, before his Honor, Judge Saunders, and upon his appeal the transcript of the record sent up sets forth the indictment as found at the Spring Term, 1839, of Warren Superior Court, and that the prisoner, upon its being read to him and it being demanded of him "how he will acquit himself of the premises above laid to his charge," says he is not guilty of the felony and murder in manner and form as in and by the said bill of indictment he stands charged; and therefore for good and evil he puts himself upon God and the country; and the Attorney-General, who in this behalf prosecutes for the State doth the like. Therefore, (546) let a jury, by whom the truth of the matter may be better known, come." The record then, after setting forth an affidavit of the prisoner for the continuance of his cause, the order of the court for its continuance, and the recognizance of several witnesses, both for the State and the defendant, to appear and give evidence at the next term, states that at the next term of said court an order was made for a special venire, and after giving the return of the sheriff thereto, proceeds, "and afterwards in the said case, State v. Thomas H. Christmas, indictment, murder, the following jury being sworn and empaneled, to wit" (naming them), "who say that the prisoner, Thomas H. Christmas, is guilty of the felony and murder in manner and form as charged in the indictment."
Badger for the prisoner.
The Attorney-General for the State.
The counsel for the prisoner objects to the sufficiency of the record in this case to warrant the judgment which has been rendered upon it. The defect alleged is for that it does not appear upon the record that the jury, who returned the verdict finding the prisoner guilty of the felony and murder charged in the indictment, was sworn to try the matter put in issue by the prisoner's plea. We have considered the objection, and are of opinion that it cannot be sustained.
In our Bill of Rights it is declared that "no freeman shall be put to answer any criminal charge but by indictment, presentment, or impeachment," and that "no freeman shall be convicted of any charge but by the unanimous verdict of good and lawful men, in open court, as heretofore used." Declaration of Rights, sections 7 and 8. These declarations have a plain reference to the provisions which the laws of England had devised for the protection of persons charged with criminal offenses, and which had been brought over by our ancestors and incorporated into our jurisprudence before the Revolution. An indictment is a written accusation by the State against the prisoner, preferred upon the oaths of twelve or more of his fellow citizens called a grand jury; and if the truth of (547) that accusation be denied by the prisoner he cannot be convicted thereof, unless it be confirmed by the unanimous suffrages of twelve more of his fellow citizens as a petit jury. In capital cases, though it is usual to make up an issue with the prisoner on his plea of not guilty, yet it is not necessary so to do. The issue is immaterial, for the trial is in the nature of an inquisition, in which the jury is charged to inquire of the truth of the accusation contained in the indictment. 1 Chitty on Criminal Law, 481; Queen v. Tutchin, 6 Mod., 281; Rex v. Oneby, 2 Stra., 775; Rex v. Royce, 4 Bur., 2084-2085. As was properly said in argument in the King v. Dowlin, 5 Term Rep., 314, "the manner of calling upon the prisoner how he will acquit himself of the charge, the subsequent demand of the manner in which he will be tried, the oath of the jury to make true deliverance of the prisoner, whom they have in charge, the charge given to the jury when empaneled, and the oath administered to the witnesses, are all indicative of an inquisition, and not of an issue to be tried between parties." It would probably not be error if the record were to set forth the verdict as a finding on the issue joined between the State and the prisoner, where the issue is joined on the truth of the indictment, but certainly such is not the regular form of stating it. In the Appendix to the 4th vol. of Blackstone's Commentaries is given the record of an indictment and conviction of murder in which, after setting forth the indictment against the prisoner (Peter Hunt), his arraignment, his denial of the truth of the matters therein charged upon him, and thereof for good and evil putting himself upon the country, and that the clerk of the assizes, who prosecutes for the King in this behalf, doth the same, it sets forth an order for a jury to come "to recognize upon their oath whether the said Peter Hunt be guilty of the felony and murder in the indictment aforesaid above specified or not guilty"; and that the jurors of the said jury for this purpose by the said sheriff impanelled and returned, do come, and then proceeds thus: "who, being elected, tried and sworn to speak the truth of and concerning the premises, upon their oath say," etc., etc.
The objection then resolves itself into this, that the record does not show with requisite certainty that the jury was sworn to try the truth of the matters charged in the indictment. Now the record (548) sets forth the indictment, the answer of the prisoner upon the inquiry how he will acquit himself of the premises in that indictment charged upon him, "that he is not guilty thereof, and therefor for good and evil puts himself upon the country"; and also, that "the Attorney-General, who in this behalf prosecutes for the State, doth the like"; and thereupon it is ordered, "let a jury, by whom the truth thereof may be the better known, come." Then, after stating other matters which ought not to have a place in the record, it proceeds, "and afterwards, in the said case, State v. Thomas H. Christmas, indictment, murder, the following jury being sworn and empaneled, to wit" (naming them) "who say that the prisoner, Thomas H. Christmas, is guilty of the felony and murder in manner and form as charged in the indictment." Now, it would seem to be a sufficient answer to the supposed uncertainty in regard to the oath administered to the jury, that this is a record of the proceedings, not of an inferior court properly so called, but of a court of supreme original jurisdiction, and that the law always presumes, until the contrary appears, that the proceedings which the record of that court shows to have been had, were, as concerns form and manner, correctly done. State v. Kimbrough, 2 Hawks, 431; State v. Seaborn, 4 Dev., 305. But it is not necessary to rely upon this answer. For however unclerical may be several of the terms to be found in this record, and however much to be regretted any deviation in a record of so grave a character, from the appropriate language to which long established forms have given a precise meaning — a deviation justly calling for a strict scrutiny into the import of the terms used — yet, on the record, such as it is, there is no rational ground for the alleged doubt. The indictment contains the accusation — the prisoner denies it — a jury is ordered to try the truth of it — that jury is sworn and returns a verdict directly responsive to the accusation. The record cannot be otherwise understood than as averring, if not in express terms, yet by necessary implication, that the jury so sworn was sworn to try what it was ordered to try — what alone was to be tried — what the jury did try — the truth of the accusation. It is enough that the record be certain to a certain intent in general. (549) It is not necessary that it should be certain to a certain intent in every particular, so as absolutely to exclude every possible conclusion, all argument, presumption or inference against it. The time was, in England, when it being entirely at the pleasure of the crown to grant or refuse a writ of error in any criminal case, subtle objections, like that now raised, were allowed to prevail, in order to carry into effect the presumed will of the crown to extend mercy to the prisoner. But it has long since been settled there and certainly is the law here that a judgment in a criminal case cannot be reversed without showing a substantial error.
This Court is of opinion that no error appears in the record of the proceedings below to warrant a reversal of the judgment there rendered. This decision must be certified to the Superior Court of Law for the County of Warren, with directions to proceed to judgment and sentence of death against the prisoner, Thomas H. Christmas, agreeably thereto and to the laws of the State.
PER CURIAM. Judgment to be affirmed.
Cited: State v. Collins, 30 N.C. 414; State v. DeBerry, 92 N.C. 802.
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