The North Carolina Criminal Code and Digest

A wife is not a competent witness against her husband to prove a battery on her person by him, except in case where a lasting injury is inflicted, or threatened to be inflicted upon her. Hussey, 44 (Busb.), 123.

A husband is a competent witness against his wife on indictment against her for assault and battery in striking the husband with an axe, since the use of such an instrument indicates malice. Davidson, 77–522.

The prosecutrix was assaulted and beaten in the night by a woman disguised as a man, and the state, as a means of identification, was allowed, over defendant's objection, to prove by the prosecutrix that about a week before the assault defendant was at her home disguised as a man, and the prosecutrix there recognized her. Defendant then introduced a witness by whom he proposed to show that he met the prosecutrix and another woman the night after the assault, and that the other woman stated in the presence and hearing of the prosecutrix that the person who committed the assault was unknown: Held, that the rejection of this evidence was error. Burton, 94-947.

On indictment for an affray, one defendant may be examined as a witness by the state against the other defendant. Weaver, 93-595.

In such case it is not error for the court to caution the witness before counsel for the other defendant cross-examines him that he need not tell anything to criminate himself. Ib.

Where there is evidence that the correction inflicted by a master upon his apprentice was excessive and cruel, evidence of the bad character of the apprentice, offered to rebut malice, is incompetent. Dickerson, 98708.

A witness can not be impeached by showing that he made declarations concerning the party against whom he testifies showing ill-will and malice unless the witness has first been interrogated as to the declarations. Ib.

CHARGE. The evidence was that a serenading crowd of about twenty persons went to defendant's house at 9 o'clock in the night, and went round the house ringing bells and blowing horns; that guns were fired by the crowd a few times; and that as they were going away defendant fired at the prosecutor, inflicting a serious wound on his leg. Defendant testified that his child, who was sleeping near a window, through which the noise and the flash of the firing was seen, came running to him with blood on her face, caused, as he did not then know, but afterwards learned, by her running against a table, and under the impulse of the moment, believing that she had been shot, he got his gun and went to the door, and seeing the flash of pistols, fired, as he supposed, by the retreating crowd, he fired into the crowd: Held, that an instruction which excluded from the jury the consideration as to whether defendant acted under a reasonable belief that himself or family was in immediate danger, was erroneous. Nash, 88--618.

It is error for the court to instruct the jury that if the witness "did strike the defendant, and that defendant drew his pistol in self-defence, although he did not cock it or point it at witness, it would amount to an excessive use of force," since the same act can not be in self-defence and also an excess of force. Jones, 77-520.

Where the error assigned is that the trial judge laid down an abstract principle of law which had no connection with the case, in a way prejudicial to defendant, but the case on appeal does not show to what the exception relates, the court will refuse to consider it. Gardner, 94–953. The court has a right to explain to the jury the difference between positive and negative evidence, and an illustration to explain the difference is not prejudicial, when the jury is expressly told that it is given merely as an explanation, and that they must determine the fact according to the weight they see fit to give the evidence. Ib.

It is error for the court to instruct the jury "that in 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." Jones, 77-520.

It is error for the court, on indictment of a police officer for using excessive force in making an arrest, to fail to call the attention of the jury to the good faith in which the officer claims to have acted. McNinch, 90— 695.

PUNISHMENT.-Imprisonment in jail for five years and a recognizance of $500 to keep the peace for five years after the expiration of the term of imprisonment, imposed on a defendant for whipping his wife with such severity as to leave the marks for two or three weeks, is "cruel or unusual punishment," within the prohibition of Const. N. C., art. 1, section 14. Driver, 78-423.

A fine of $100 imposed on a jailer for whipping a prisoner with a buggywhip in such a manner as to cut the blood out of her arms and back, but not to disable her, the places healing up in a week or two, is not excessive, and is clearly within the discretion of the court, since the injury inflicted was serious. Roseman, 108-765.

Where the court adjudges that defendant be fined and imprisoned, and the fine is paid and part of the imprisonment undergone, it can not, even at the same term, recall and suspend the judgment, nor can the court at a subsequent term sentence him again for the same offence. Warren, 92-825.

Imprisonment in jail for six months is excessive and unwarranted punishment of one convicted of a simple assault and battery upon a person who was acting as a special policeman at the time, but whose appointment was unwarranted, there being no evidence that there was any unusual demand for his appointment within the meaning of the act authorizing the mayor to appoint special policemen. Holmes, 118-1201.

A sentence of two years on the roads is not excessive punishment on conviction for an aggravated assault with a deadly weapon. Haynie, 1181265.

See RIOT.

ASSEMBLY UNLAWFUL.

ASYLUM.

Sec. 36 (2255). Criminals confined in jail found to be insane, to be sent to an asylum; order granted by judges of the superior court. 1883, c. 156, s. 16. 1891, c. 15, s. 12.

The judges of the superior court, in their respective districts, shall commit to the proper asylum, if there be room therein, as a patient, any person who may be confined in jail, on a criminal

charge of any kind or degree, or upon a peace warrant, whenever the judge shall be satisfied by the verdict of a jury of inquisition that the alleged criminal act was committed while such person was insane, and that such insanity continues; and also any person acquitted upon a criminal charge, where, on the trial of such person, insanity was relied upon as a defence: Provided, the fact of insanity was found as a distinct issue to exist at the time of such trial, or is so found by a jury of inquisition as such judge may direct. A copy of such finding in any of the above cases shall accompany the committal. Provided further, that nothing in this section shall be construed as giving priority of admission to any asylum or hospital to any insane criminal or person acquitted of crime upon the ground of insanity, or is unable by reason of insanity to conduct his defence, over other classes of insane persons. In case any person shall be committed to any asylum or hospital under this section because of inability to make a legal defence to the indictment by reason of insanity shall thereafter recover sanity, it shall be the duty of the superintendent and the board of three directors provided for in section twenty-two hundred and sixty of The Code to certify the fact of such person's sanity to the solicitor of the proper district, who shall thereupon take proper steps to secure the appearance of such person to answer the original indictment.

ATTEMPT TO COMMIT CRIME.

An indictable attempt to commit a crime is such an intentional preliminary guilty act as will apparently result in a deliberate crime. Brown, 95-685.

The acts constituting the alleged attempt should be set forth in the indictment. Brown, 95-685.

On indictment for an attempt to commit burglary, some overt act of defendant, which in the ordinary course of things would result in the commission of the crime, must be alleged and proved. Colvin, 90–717.

An attempt to commit a felony, some act being done amounting to an attempt to accomplish the purpose without doing it, is a misdemeanor. Jordan, 75-27.

An indictment charging an attempt to kill by administering a poisonous drug, and an attempt to produce an abortion by the same means, is not demurrable for a misjoinder, since both offences are misdemeanors at common law of the same grade. Slagle, 82-653.

ATTORNEYS.

See also ARGUMENT OF COUNSEL COMMENTS OF COUNSEL.

SEC. 37 (26). Attorney not to be debarred. except. etc.

SEC. 38 (27). Justices not to practice law

SEC. 39 (110). Clerk not to act as
attorney.
SEC. 40 (28).
practice law.

Clerks forbidden to

Sec. 37 (26). Attorney not to be debarred except, etc. 1870-'1, c. 216, s. 4. No person who shall have been duly licensed to practice law as an attorney shall be debarred or deprived of his license and right so to practice law, either permanently or temporarily, unless he shall have been convicted, or in open court confessed himself guilty of some criminal offence, showing him to be unfit to be trusted in the discharge of the duties of his profession, and unless he shall be debarred according to the two preceding sections and the succeeding section.

CONFESSION MUST BE VOLUNTARY.-The admission of an attorney that he wrongfully retains his client's money, such admission being made in answer to a rule to show cause why he should not be attached for contempt in failing to pay the money into court in obedience to an order of court, is not a confession "in open court" within the meaning of this statute, since the admission is not voluntary, as when one is charged on indictment and confesses in open court, and besides, to allow his answer to the rule to be used as a confession to establish guilt would be objectionable as a means to compel him to criminate himself on oath. Kane v. Haywood, 66-1.

STATUTE CONSTITUTIONAL.This statute is constitutional, and a judge has no right to debar an attorney, who has never been convicted of a criminal offence, nor confessed such in open court, from practicing his profession simply because such attorney published an article concerning the judge which he considers libellous. The respondent in such case might "try himself," or he might join issue as to the facts and justify by showing the truth of the allegations contained in the article for which he was held in contempt. Ex parte Schenck, 65 N. C., 353.

Sec. 38 (27). Justices not to practice law. 1870-'1, c. 90. 1883, c. 406.

It shall not be lawful for any attorney at law or justice of the peace to practice law as an attorney in any of the judicial courts held for the county wherein they hold the office of county commissioner or justice of the peace. And any person offending against this section shall be guilty of a misdemeanor, and, upon conviction, be fined at the discretion of the court not less than two hundred dollars; and by the judgment of the court may be dismissed from the practice of law as an attorney, and be removed. from the office of justice of the peace.

The fact that a justice of the peace acted as attorney in only one case, there being no evidence that he received or charged any fee, or held himself out to the public as an attorney, or that he appeared in any other case, is not sufficient to justify an instruction that if the jury believe the evidence defendant is guilty, though that fact is some evidence to be submitted to the jury to be considered by them in determining whether he practiced law within the meaning of the statute. Bryan, 98-644.

FOREIGNERS UNNATURALIZED.-Unnaturalized foreigners can not licensed as attorneys in this state. Ex parte Thompson, 10 (3 Hawks), 355.

Sec. 39 (110). Clerk not to act as attorney, etc C. C. P., s. 424.

No clerk or any partner or person connected in law business with him shall act as counsel or attorney at law in the county wherein he is clerk; and any one violating this provision shall be guilty of a misdemeanor.

Sec. 40 (28). Clerks of courts forbidden to practice law s. 1. 1880, c. 43.

1871-12, c. 120,

It shall not be lawful for any deputy or assistant clerk of the superior court clerk of any county to practice law as an attorney in any of the judicial courts held for the county in which he performs the duty of a deputy or assistant clerk as aforesaid. Any person offending against this section shall be guilty of a misdemeanor, and be fined at the discretion of the court, not less than two hundred dollars.

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The North Carolina Criminal Code and Digest: A Complete Code of All the ...