{
  "id": 11277087,
  "name": "THE STATE v. A. BAKER, J. THOMAS and G. JOHNSON",
  "name_abbreviation": "State v. Baker",
  "decision_date": "1869-01",
  "docket_number": "",
  "first_page": "276",
  "last_page": "282",
  "citations": [
    {
      "type": "official",
      "cite": "63 N.C. 276"
    }
  ],
  "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": "2 Dev. 468",
      "category": "reporters:state",
      "reporter": "Dev.",
      "opinion_index": -1
    }
  ],
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  "last_updated": "2023-07-14T15:51:48.011339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE STATE v. A. BAKER, J. THOMAS and G. JOHNSON."
    ],
    "opinions": [
      {
        "text": "Reade, J.\nThe statute provides that, for \u201cgood cause shown, the Governor shall issue commissions of Oyer and Terminer to the Judges of the Superior Courts of law, which Courts of' Oyer and Terminer shall have jurisdiction to indict, try,\" &c., \u2014 Act of 1862, February 9.\n\u201c The laws of North Carolina, not repugnant to this Constitution, or to the Constitution of the United States, shall be in force until lawfully altered\u201d \u2014 State Constitution, Art. 4, s. 24.\nUnder the Constitution, the Courts are \u201cSupreme Courts,. Superior Courts, Courts of Justice of the Peace, and Special Courts\u201d \u2014 Art. 4, s. 4.\nA Court of Oyer and Terminer, held by a Judge of the-Superior Court, as provided for in the act of 1862, supra, is a Superior Court, and is not repugnant to the Constitution, but is in consonance with it. The act of 1862 is, therefore, in force.\nIt appears from the record in this case, that two commissions issued to Judge Mitchell to hold the Court, the action of' which we are reviewing \u2014 one from Governor \"Worth, before the late provisional government expired, and one from Governor Holden, after the present permanent government came \u25a0 in. And the statement of the case, which stands in the place of the prisoners' exceptions, sets forth that Judge Mitchell held the Court \u201c under his appointment as Judge of the Superior Court, and the special commission of Governor Holden.\u201d We think, therefore, that it appears affirmatively that the Court was properly constituted, and had jurisdiction. But it was not necessary that it should appear on the record affirmatively;. for, when a Court is held by a Superior Court Judge, \u2014 and Judge Mitchell is such a Judge, \u2014 it is not necessary that the record should set out the authority by which he held it, because, prima fade at least, it is to be taken that he is authorized to hold it, and that it is in all things regular. Sparkman v. Daughtry, 13 Ire. 168; State v. Ledford, 6 Ire. 5.\nThe indictment has several counts, one charging the killing by blows with weapons, another, by drowning, and a third, by means to the jurors unknown. And there was a general verdict of guilty. The only evidence offered was upon the first count; and there was'evidence of the blows, and the physician was of the opinion that the death was caused by the blows. TTis Honor\u2019s charge was confined to the first count, \u2014 telling the jury that if they believed that the blows were the cause of the death, it was murder.\nIt was in evidence that the dead body was found in the river some days after the blows were given, but this was not relied on as evidence of his being drowned, and there was no charge; upon, or consideration of the count for drowning.\nThe prisoner insists that as the killing is charged in different and inconsistent ways, and the'verdict is general, the verdict is inconsistent, and no judgment can be rendered The authority principally relied on for this position, is Regina v. O\u2019Brien, 61 Eng. C. L. R. 115. In that case one count charged the death to be by a blow with a stick held in the hand, and another count, by a stone cast and thrown. The verdict was general. It was objected that no judgment could be rendered, because the finding of the jury left it uncertain, wheth\u00e9r the death was caused by the blow with a stick held in the hand, or by the blow with a stone cast or thrown. The case was reserved for the fifteen Judges, and was well considered. The conviction was held to be right, and judgment was pronounced. The decision, therefore, does not sustain the position, but is not precisely against it, because it was put upon the ground that the different modes charged were substantially the same, both being by blows. Yet it must be admitted that much fell from the Judges arguendo, to favor the position. The physician, who made the post mortem examination in that ease, said\u2019 there were two fractures of the skull, both might have been \u2022caused by the stick; but it was more probable that one was--caused by the stone, and he could not say which was the mortal blow, as each, without the other, would have been mortal. Tt is to be observed that in that case there was evidence upon \"both counts, which differs from our case, in which there was \u25a0evidence only upon one count. It seems, however, to be settled both in England and this country, that where there is a general verdict on an indictment containing several counts, some good \u2022and some bad, judgment may pass upon the counts that are good, on the presumption that to them the verdict attached. And so, where one of the two counts is good, and one bad, and the prisoner is found guilty, and sentenced generally, the presumption of law is that the court awarded sentence on the good count. Wharton\u2019s Grim. Law, Sec. 3047.\nAnd it is said that every cautious pleader will insert as many counts as necessary to provide for every possible contingency in the evidence. To a person unskilled in legal proceedings it inay seem strange that several modes of death, inconsistent with each other, should be stated in the same indictment; but it is often necessary, and the reason for it when explained will be obvious. The indictment is but the charge or' accusation made by the grand jury, with as much certainty as the evidence before them will warrant. They may be satisfied that the murder was committed, but doubtful as to the manner; but in order to meet the evidence as it may developed on the trial, they are allowed to set out the mode in different counts, and then, if any one of them is proved, it is sufficient to support the indictment.\nTake the case of a murder at sea \u2014 a man is struck down, lies on the deck for some time insensible, and in that condition is thrown overboard. The evidence proves the homicide certainly, either by the blows or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts; charging the death, by a blow; and the death,by drowning; and perhaps a third, charging it, by the joint results of 'botb. A general verdict would be sustained, and a general Judgment upon tbe verdict, and this from the very necessity of .the case. Wharton\u2019s Crim. Law, Sec. 424.\nThe killing is the substance, the mode is the form: and while it is important, that the prisoner should be specifically informed of the charge against him, so that he may make his defence, yet he cannot complain that he is informed that, if he did not do it in one way, he did it in another \u2014 both ways being \u00a1stated; and it is not to be tolerated, that the crime is to go unpunished, because the precise manner of committing it is in doubt.\nIn our own Court it has been decided, that when there are several counts, some good and some bad, and a general verdict, judgment may pass upon the good, rejecting the bad as surplusage. State v. Morrison, 2 Ire. 9; State v. Miller, 7 Ire. 275; State v. McCanless, 9 Ire. 475.\nWhere there are several counts, and evidence was offered with reference to one only, the verdict though general, will be presumed to have been given on that alone, State v. Long, 7 Jon. 24. Where there are several counts, charging the same crime to have been done in different ways, the jury are not bound to distinguish in which way it was done, but the verdict maybe general. State v. Williams, 9 Ire. 140. We see no reason for arresting the judgment.\nThe Judge charged the jury that, if the acts deposed to by \u2022Cuba Panton (who testified as to the blows), were the cause of the death, it was murder. This charge was excepted to upon \u25a0the ground that it assumed the acts to be true, and left only their effect to the jury; whereas, the prisoner denied that the acts ever occurred, and insisted that the existence of the acts ought to have been left to the jury. But we cannot understand how certain acts caused death, unless the acts existed. When, therefore, his Honor told the jury that, if they believed that certain acts were the cause of the death, it was murder, it was the same as if he had said \u201c If you believe the acts were performed, and that they produced death, it is murder ;\u201d '.because it is impossible that the jury would believe that the acts caused' the death, without first believing that the acts-existed.\nEuriug the trial, the jury were put in possession of an officer,, to be-kept together, with permission to eat their dinner. One-of the jurors was allowed \u201c to pass by or near a number of persons, and to eat his dinner a short distance from the other-jurors, but he conversed with no one. \u201d There is nothing im. this of which the prisoner has any right to complain. In State v. Hester, 2 Jon. 83, two jurors left the rest for fifteen or twenty minutes, but did not speak to any one, and it was-held not to vitiate the verdict. Let this be certified, &c.\nPee Cueiam. There is no error.",
        "type": "majority",
        "author": "Reade, J."
      }
    ],
    "attorneys": [
      "Gonigland & Solomon, for the prisoners.",
      "Attorney General, contra."
    ],
    "corrections": "",
    "head_matter": "THE STATE v. A. BAKER, J. THOMAS and G. JOHNSON.\nA Court of Oyer and Terminer held in 1868 by virtue of the aot of 1863,' (Feb. 9,) and under a commission from Governor Holden to a Judge of.' the Superior Court, was competent to hear and determine cases of crime. Where a Judge of the Superior Court holds a term, it will be taken, prima' facie at least, that he was authorized so to do, and that it was regular.\nA general verdict of guilty, upon an indictment containing several counts-, will be supported, .although these are inconsistent as regards their statement of the manner of killing.\nA charge that \u2014 \u201c if the acts deposed to by C. P. were the cause of the-death, it was murder,\u201d held to be no trespass upon the province of the-j\u00aey.\nDuring a capital trial, one of the jury (then out of Court in charge of am officer for the purpose of eating dinner) was allowed to pass by or near a number of persons, and to eat his dinner a short distance from the other jurors, although he conversed with no one, \u2014 held to give no just cause of complaint to the prisoners.\n(Sparkman v. Daughtry, 13 Ire. 168; S. v. Zedford, 6 Ire. 5; S. v. Morrison, 3 Ire. 9; S v. Miller, 7 Ire. 375; S. v. McOandless, 9 Ire. 375; S. v. Williams, 9. Ire. 140; S. v. Sester, 3 Jon. 83, cited and approved.)\nMuedee, tried- before Mitchell, J., at a Court of Oyer anc\u00fc Terminer for Halifax, held in July 1868.\nThe record set forth a commission from Governor Worth to Judge Mitchell, dated June 22, 1868, authorizing him to-hold the Court in question at such early time as he might, appoint; also one from Governor Holden to the same, dated July 14, 1868, giving him like authority to-hold a Court on the 27th day of July 1868.\nThe indictment contained four counts, which charged the-homicide to have been committed (1) with a stick, (2) by casting to the ground, striking, kicking and beating, (8) by drowning, and (4) by some means unknown.\nThe prisoners and the deceased had been playing cards-during the night, the deceased being winner. The prisoner Baker thereupon, became' angry, abusing the deceased, and insisting that he should return the money. This was refused-Thereupon, as was testified by a witness named Cuba Pa-nton,. wbo was in a room adjoining, Baber renewed Ms abuse, and .\u25a0struck the deceased with some instrument that had a handle, and knocked him down. He fell backwards, his head striking upon a passage floor. Thereupon, a blow with the same or a \u25a0similar weapon was given by each of the other prisoners. They then dragged him off groaning and begging for mercy. He \u25a0was not seen again until some days afterwards, when his body was found in Roanoke river. When found, a wound, apparently made by a hammer, was discovered on the frontal bone; \u25a0a physician pronounced it to be mortal, and the cause of the \u2022death. Other wounds not of themselves sufficient to produce \u25a0death, were found upon the body.\nThe Court instructed the jury that if the acts deposed to \u00edby Cuba Panton were the cause of the death of the deceased, \u00ab(Wade -Ditcher,) it was murder by the prisoners. The prisoners excepted.\nDuring the trial the jury were permitted, under the charge \u25a0of an officer, to eat their dinner. One of them was allowed by \u25a0the officer to pass by or near a number of persons, and to eat Mis dinner at a short distance from the others. It was not \u00a1alleged or believed that he conversed with any one.\nThe term of the Court was stated in the case to have been '\u25a0held under an appointment as Judge of the Superior Court, .-.and under the special commission by Governor Holden.\nYerdict, Guilty; Rule for a new trial; Rule discharged; : Judgment, and appeal.\nGonigland & Solomon, for the prisoners.\n1. The acts of 1862 and 1863 ceased to have effect upon the -adoption of the present Constitution; and that Constitution -does not authorize Courts of Oyer and Terminer.\n2. The charge in regard to the evidence of Cuba Panton, assumed the \u201c acts\u201d to exist.\n8. The charge violates the rule in the State v. Seates, 5 Ire. 420.\nThe judgment must be arrested, for the counts charge the killing, in inconsistent ways, and the verdict being general,., there can be no judgment upon it. Beg. v. O\u2019Brien, 2 Car. and Kir. 115; Beg. v. Downing, 2 lb. 386.\nThey also cited Chitty, Cr. L. 1st, 258; 3d, 734; Hale. PL. Cr. 1st, 439; 8. v. Moses, 2 Dev. 468.\nAttorney General, contra."
  },
  "file_name": "0276-01",
  "first_page_order": 292,
  "last_page_order": 298
}