{ "id": 2090119, "name": "THE STATE v. RUFUS LUDWICK", "name_abbreviation": "State v. Ludwick", "decision_date": "1868-01", "docket_number": "", "first_page": "401", "last_page": "405", "citations": [ { "type": "nominative", "cite": "1 Phil. 401" }, { "type": "official", "cite": "61 N.C. 401" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 D. & B. 110", "category": "reporters:state", "reporter": "D. & B.", "opinion_index": -1 }, { "cite": "2 Dev., 49", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276196 ], "opinion_index": -1, "case_paths": [ "/nc/13/0049-01" ] }, { "cite": "2 Dev., 569", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11277782 ], "opinion_index": 0, "case_paths": [ "/nc/13/0569-01" ] } ], "analysis": { "cardinality": 470, "char_count": 8437, "ocr_confidence": 0.448, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3048876594735832 }, "sha256": "3e1641a8c2b331c540f2b7fb0bd0e82655dfd61e387d830e401e5227fea74f88", "simhash": "1:ada52c7eed2805ce", "word_count": 1528 }, "last_updated": "2023-07-14T20:18:16.220923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE STATE v. RUFUS LUDWICK." ], "opinions": [ { "text": "Pearson, C. J.\nThe first exception, as to the admissibility of what the witness Linebarger said to the prisoner, and the reply made by the mother of the prisoner in his presence, and also the second exception, as to the admissibility of the fact that the prisoner charged his father as the murderer, and that his father, being present, indignantly denied it, were properly abandoned in this court.\nSo the only point is, the rejection of the father when offered by the prisoner as a witne'ss in his behalf. We think the witness ought to have been rejected.\nThe prisoner was indicted as principal, and his mother,, the wife of the witness, was indicted as accessory before the fact. The prisoner was alone on trial; and the question is, Was the husband called to give evidence for the wife ? That depends upon, Whether evidence for the prisoner was evidence for her; and that depends upon Whether the acquittal of the prisoner would in its legal effect be an acquittal of the wife.\nAt common law an accessory before the fact could not be convicted, unless the principal when tried at the same time was first convicted; or unless he had been before tried, convicted, and received judgment. Duncan\u2019s case, 6 Ire., 98. That decision called for legislative interference; and to remedy the defect in the common law, it was enacted, Rev. Code, c. 34 s. 53, that \u201c any person counselling &c., the commission of a felony, shall be deemed guilty of felony, and may be indicted and convicted, either as accessory before the fact to the principal felony, together with the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted or shall or shall not be amenable to justice.\" This statute alters the common law, and puts out of the way the necessity of a prior conviction and attainder of the principal felon, but it has not even the most remote bearing upon a case where the prisoner charged as principal'felon has been tried and acquitted. That is left as at common law, and the notion that when it is decided by the judgment of the law that no felony has been committed, and that the person charged as the principal felon is not guilty, one charged as being accessory before the fact can be tried and convicted, is out of the question, for there is no fact and no principal. That an acquittal of the principal is an acquittal of the accessory is settled by all of the books \u2014 2 Hawk, P. C. ch. 29, sec. 40; 4 Rep. 43, in which latter book my Lord Coke says that the maxim of the law is, \u2018ubifactum nullum, ibi fortia nulla; et ubi non est principalis non potest esse accessorius.\u201d This maxim is extended to all offences which cannot be committed except by more than one person. In Tom\u2019s case, 2 Dev., 569, it is held in an indictment for a conspiracy against two, that the acquittal of one is the acquittal of the other. So in Mainor\u2019s case, 6 Ire., 340, and Parham\u2019s case, 5 Jon., 416, (indictments for fornication and adultery) \u2014 it is held that an acquittal of one is an acquittal of the other; for it takes two to commit the offense, and when it is fixed by judgment at law that one is not guilty, it follows that the other cannot be guilty; and in Mainor\u2019s case, supra, although the jury found the man guilty, yet as they found the woman not guilty, it was held to be an acquittal of both, upon the settled rule in regard to the acquittal of the principal being in legal effect the acquittal of the accessory.\nIt is therefore perfectly clear that if the prisoner had been acquitted, it would have been an acquittal of the wife of the witness, consequently the witness was called to give evidence for his wfife.\nWe find nothing in the act of 1866, ch. 43, \u201c An act to improve the law of .evidence,\u201d to change this view of the subject, for in sec. 3 it is provided that \u201c nothing contained in the second section of this act shall render any person competent or compellable in a criminal proceeding to give evidence for or against himself, or any husband competent or compellable to give evidence for or against his wife,\u201d &c. Suppose the mother had been called to give evidence for -the prisoner, she was incompetent, as it would be giving evidence for herselfj and, for the like reason the husband, was incompetent, and could not give evidence for his wife.\nThere is no error. This will be certified to .the end, &c.\nPer Curiam. There is no error.", "type": "majority", "author": "Pearson, C. J." } ], "attorneys": [ "Boyden & Bailey for the prisoner.", "Alto. Gen. & Batchelor contra." ], "corrections": "", "head_matter": "THE STATE v. RUFUS LUDWICK.\nWhat was said by a third person in the presence and the hearing of the prisoner may be given in evidence against him.\nThe husband of one charged as an accessory is not a competent witness in favor of the one charged as the principal felon.\nState v. Duncan, 6 Ire., 98; State v. Tom, 2 Dev.; 569; State v. Mainor, 6 Ire., 340; State v. Parham, 5 Jon., 416, cited and approved.\nMurder, tried before Gilliam, J, at Fall Term 1867 of the Superior Court of Rowan.\nThe indictment charged the prisoner as principal and his mother as accessory before the fact, in the murder of Cornelia Ludwick his wife. Upon application of the mother there was a severance in the trials. The prisoner and his wife had been married only eleven days at the time of her disappearance, and were living with his father. Nine days after her disappearance her dead body was found in the Yadkin about a mile from the prisoner\u2019s residence. She had been shot through the head, and her throat had been cut.\nThe State relied upon circumstantial testimony in order to procure a conviction.\nIt was shown -that the prisoner was much under his mother\u2019s control, and that she was greatly displeased with the marriage, and would not permit deceased to eat at the table or to sleep in the house. A witness proved that on the fourth day after the marriage he visited the house and found the deceased standing out in the yard, in a hard rain, whilst the prisoner and his mother were sitting in the porch. Upon the witness asking prisoner why he did not ask his wife in, out of the rain, the mother said, No such d \u2014 d bitch shall come into my house; and prisoner said nothing. The prisoner objected to this evidence of what his mother said, but the court received it.\nThe prisoner, among various contradictory accounts which he gave of his wife\u2019s disappearance, said that his father had shot her. On his saying this at one time in his father\u2019s presence, the latter indignantly denied it. The prisoner objected to the evidence of what his father had said, but it was received by the court.\nThe prisoner offered his father as a witness, but upon his being objected to by the State, the court excluded him. The prisoner excepted.\nVerdict, Guilty; Rule for a New Trial discharged; Judgment, and Appeal.\nBoyden & Bailey for the prisoner.\nThe English decisions upon the two statutes from which our recent act in regard to evidence is taken (Lord Den-man\u2019s and 14 and 15 Victoria) do not apply here, as the form in which our legislation in this case has been cast differs from the English so much' that it may be considered original.\nThe exceptions in our act are only in case husband or wife is the party upon trial. In that case the elementary books put the former exclusion upon public policy; in other cases upon interest. The act of 1866 removes the disability of interest in all cases.\nThe act is broad enough to include' co-defendants; and the exclusions are only where one is called upon to testify for or against himself. In this case the mother might have been indicted for a substantive felony, and in such case her husband\u2019s evidence upon her son\u2019s trial would be res inter alios.\nAlto. Gen. & Batchelor contra.\nThe wife here is indicted as an accessory, and not for a substantive felony; and in such case neither she nor her husband was formerly competent as a witness for the principal. 1 Gr. Ev., \u00a7 407; State v. Duncan, 6 Ire., 296; State v. Chittem, 2 Dev., 49; State v. Jolly, 3 D. & B. 110; State v. Smith, 2 Ire., 402; Bex v. Smith, 1 Moody Cr. Ca., 289; Webb\u2019s case, 2 Russ. Cr., 982.\nThe husband has not been rendered competent by the act of 1866. His exclusion in cases affecting his wife is on account of public policy, and therefore is not touched by our act, which was intended, upon its face, to do away with such disabilities only as result from interest or from crime. Stapleton v. Croft, 83 Eng. Com. Law, 367; Barbut v. Allen, 10 Eng. L. & E., 596; Alcoch v. Alcoclc, 12 Eng. L. & E., 354." }, "file_name": "0401-01", "first_page_order": 413, "last_page_order": 417 }