{ "id": 8683192, "name": "STATE v. THOMAS L. JONES", "name_abbreviation": "State v. Jones", "decision_date": "1877-06", "docket_number": "", "first_page": "520", "last_page": "522", "citations": [ { "type": "official", "cite": "77 N.C. 520" } ], "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": "75 N. C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686356 ], "opinion_index": -1, "case_paths": [ "/nc/75/0104-01" ] }, { "cite": "75 N. C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686356 ], "opinion_index": 0, "case_paths": [ "/nc/75/0104-01" ] } ], "analysis": { "cardinality": 290, "char_count": 4187, "ocr_confidence": 0.427, "pagerank": { "raw": 5.070221573761886e-07, "percentile": 0.9376243557056801 }, "sha256": "100ad51633ce6f65c843e9e1636f4aeee1d323f5dd03fdafadfff1e42e83491d", "simhash": "1:a7e622371d91a238", "word_count": 734 }, "last_updated": "2023-07-14T20:46:21.915598+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. THOMAS L. JONES." ], "opinions": [ { "text": "RodmaN, J.\n1. \u00a5e think the Solicitor had a right to-comment on the fact that the defendant after having sworn Whitley as a witness declined to examine him. It' does not appear that his comments were in any way improper. It may be that no inference against the defendant should have been drawn from a circumstance which seems trivial enough, but the jury alone could pass on its weight.\n2. The Judge spoke inaccurately and without due care when he said to the jury, that in \u201c passing on the credibility of the witness, Smith, they shall consider that it is a rule of law, a presumption that men testify truly and not falsely.\u201d An expression somewhat similar was commented on in State v. Smallwood, 75 N. C. 104. A Judge may-properly instruct the jury, that the law presumes, and that they should presume, that a witness' speaks the truth, unless there be some-reason for thinking otherwise. But this is not a .presumption of law in a technical sense, but of fact, being drawn from our experience of human veracity. Its force depends upon a number of circumstances which the jury must consider before acting on it. It has no artificial force. 1 Starkie Ev. 10. Ed. 821. In 2 Wharton Ev. \u00a7 1287, the subject is-treated of with ability. Probably the Judge meant what is above expressed, and it is not probable that his inaccuraqy of expression misled the jury. If it had been called to his-attention at the time he would probably have corrected the inaccuracy. For these reasons we should he very reluctant, to grant a new trial, if this were the only exception.\n3. We think also the Judge erred in saying, \u2014 \u201cSuppose witness Smith did strike the defendant first, and that defendant drew his pistol in self-defence, although he did not cock it or point it at witness Smith, it would amount to the excessive use of force, and in that aspect they should convict him.\u201d The error is plain. The same act cannot be in self-defence and also an excess. Moreover, it was for the jury to say whether a force was used in excess of what was necessary in defence.\nError.\nPer Cumam. Venire de novo.", "type": "majority", "author": "RodmaN, J." } ], "attorneys": [ "Attorney General, for the State.", "Messrs. Shipp Bailey, for the defendant." ], "corrections": "", "head_matter": "STATE v. THOMAS L. JONES.\nIndictment \u2014 Assault and Battery \u2014 Practice--Argument of Counsel\u2014 Judge\u2019s Charge.\n1. tt is not improper for a prosecuting officer, in bis argument to a jury, to comment upon the fact that the defendant had sworn 8 witness and afterwards declined to examine him.\n2. Where the Court below instructed the jury \u201cthat its passing: on the credibility of a witness, they shall consider that it is a rule of law, a-presumption that men testify truly and not falsely Reid, to be error.\n3. The same act cannot be in self-defence and also an excess of force Therefore, where on a trial for assault and battery the Court below instructed the jury that \u201csuppose the witness did strike the defendant and that defendant drew his pistol' in self-defence, although lie did not cock it or point it at witness, it would amount to an excessive use of force,\u201d &c. ; Reid, to be error.\n{Slate y. Smallwood, 75 N. C. 104, cited and approved.)\nIndiotmeNT for Assault and Battery, tried at Spring Term? 1877, of Mecklenburg Superior Court, before Cloud, J.\nThe prosecutor, Smith, testified that he was a witness in a trial of an action before a J ustice of the Peace, wherein the present defendant was plaintiff and one Johnston was defendant, and that just after the decision of the Justice was given, this defendant struck Johnston and in a few minutes thereafter drew a pistol, and said to witness, \u201c You are the scoundrel I have been waiting for,\u201d and thereupon the witness struck the defendant. This was the assault for' which conviction was asked.\nThe comments of the State Solicitor in closing his argument to the jury, as to the failure of the defendant to examine one Whitley who had been sworn as. a witness, were objected to by the defendant, but His Honor declined to interpose, and the defendant excepted.\nThe charge of His Honor, to which the defendant also-excepted, is sufficiently stated by Mr. Justice RodmaN in delivering the opinion of this Court. There was a verdict of' guilty. Judgment. Appeal by defendant.\nAttorney General, for the State.\nMessrs. Shipp Bailey, for the defendant." }, "file_name": "0520-01", "first_page_order": 534, "last_page_order": 536 }