State v. Andrew.

lowing him to let the jury also pass on these facts is this: if he decide for the prisoner and reject the evidence, that is the end of it, whereas, if he decide for the State, and can leave it to the jury to review his decision, it is an inducement for him to decide pro forma for the State, and so the evidence goes to the jury without having the preliminary facts decided according to law. Under this view the second error in "Dick's case" "might by possibility have wrought him harm." We are relieved however by the fact, that as he had a venire de novo on the first ground, the ruling upon the second was not necessary to the decision; it may be for that reason it was not more fully considered by this court.

It is set out in the statement of the case sent to this court: "In the argument to the jury (not before) the prisoner's counsel asked the court to withdraw the confessions." The case shows that the testimony of four witnesses tending to show that the confessions were not made voluntarily had been offered to the court in the progress of the trial. This could only have been done for the purpose of excluding the confessions, and if his Honor, in the exercise of his discretion, ruled that the objection came too late, it was for him to take the responsibility of saying so, and it could not be avoided. by leaving the matter to the jury.

We must be allowed to enter our protest against the unnecessary prolixity in the statement of cases made up for this court, which seems to be coming into practice. It is not a mere matter of taste. Costs are unnecessarily accumulated, and much is added to the labor of the members of this court when required to wade through such voluminous documents; it is almost literally to look for a needle in a hay stack. It is the privilege of the counsel of the appellant to make up a case for this court, in order to present the points of law, which answers the purpose of a bill of exceptions; but the case is made up under the supervision of the

Parker v. Shannonhouse,

Judge, and he should not yield to the importunity of counsel, and allow unnecessary detail of evidence and matter irrelevant, because the counsel do not choose to take the trouble of separating the wheat from the chaff.


Venire de novo.


The clause of the Ordinance of the Convention of June, 1866, entitled "An Ordinance to change the jurisdiction of the courts," &c., which provides that no scire facias should be thereafter issued to revive dormant judgments, and that every scire facias then pending should be dismissed at defendant's cost, is not unconstitutional.

MOTION to dismiss a scire facias, before Warren, J., at Fall Term, 1866, of the Superior Court of PERQUIMONS.

The plaintiff, on the 23d April, 1866, sued out a scire facias to May Term of the County Court, to revive a dormant judgment in that court. Pleas were entered at the return term, and at August Term, upon motion of the defendant's counsel, the court gave judgment dismissing the scire facias, and the plaintiff appealed to the Superior Court. In that court his Honor overruled the motion to dismiss and gave judgment that a procedendo issue to the County Court. The defendant, thereupon, appealed to this court.

Smith, Yates and W. A. Moore, for the plaintiff.

Bragg, for the defendant.

PEARSON, C. J. We think his Honor erred in overruling the motion to dismiss the scire facias.

The motion presented the question of the constitutional

Parker v. Shannonhouse.

ity of the ordinance of the Convention-that no scire facias shall thereafter be issued to revive a dormant judgment, and every scire facias then pending in court shall be dismissed at the cost of the defendant. Without reference to the wisdom or policy of this enactment, the naked question is, Had the Convention power so to ordain?

We find by reference to the books that, at common law, the remedy of the creditor was an action of debt on former judgment. The Statute, 13 Edw. I, ch. 15, re-enacted in the Rev. Code, ch. 31, sec. 109, gives to the creditor an additional remedy by scire facias. The effect of the ordinance is to repeal the Statute, 13 Edw. I, and leave the creditor to his common law remedy. This does not impair the obligation of the contract, but simply takes from the creditor the additional remedy provided by statute, and leaves him to his common law remedy; so the ordinance does not impair the obligation of the contract or deny a remedy. This the Convention, which represented the people as if assembled "in campis," had the power to do.

There is error.


Judgment of the court below reversed; and judgment here that the scire facias be dismissed at defendant's costs.

State v. Dula.


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To the rule requiring testimony to be subjected to the tests of an oath" and "cross examination" there are exceptions, arising from necessity. One of these consists of declarations, which are part of the res gestæ. This exception embraces only such declarations as give character to an act; therefore, when the deceased was met a few miles from the place where she was murdered, going in the direction of that place, Held that her declarations, in a conversation with the witness, as to where the prisoner was and that she expected to meet him at the place whither she was going, were not admissible against him.

What facts amount to an agreement to commit a crime between the prisoner and one charged as accessory, so as to render competent the acts and declarations of the alleged accessory, is a question of law, and the decision of the court below upon it is subject to review in the Supreme Court.

So, whether there is any evidence of a common design. But whether the evidence proves the fact of common design, whether the witnesses are worthy of credit, and in case of conflict, what witnesses should be believed by the Judge, are questions of fact for him to decide, and are not liable to review.

(State v. George, 7 Ire., 321, and State v. Andrew, ante, p. 205, cited and approved.)

MURDER, tried before Buxton, J., at Fall Term, 1866, of the Superior Court of IREDELL.

The prisoner was indicted as principal, and one Ann Melton as accessory before the fact, in the murder of one Laura Foster, in Wilkes county in May, 1866. The bill was found at Fall Term, 1866, of Wilkes Superior Court, and upon affidavit, removed to Iredell. The prisoner and Ann Melton were arraigned together, but, upon motion of the counsel for the former, there was a severance, and he put upon his trial alone.

The case, as made out by his Honor, contained a statement of all the evidence, and was quite voluminous. There were several exceptions by the prisoner on account of the admission of improper testimony. The opinion of this court

State v. Dula.

makes it unnecessary to state them all, or to detail the evidence.

The body of the deceased was found a few weeks after she disappeared near a locality called "the Bates place," and was recognized. There were plain indications that the deceased had been murdered; and the testimony relied on to prove the guilt of the prisoner was circumstantial.

One Betsey Scott testified that she saw the deceased the morning of the day she was missing; "she was riding her father's mare, bare-back, with a bundle of clothes in her lap," &c. It was then proposed to prove by the witness that in a conversation that ensued between her and the deceased, the latter said she was on her way to the Bates place; that the prisoner had returned just before day, was going another way and she expected to meet him at the Bates place. The prisoner objected to the declarations, as not being a part of the res gestæ; but the testimony was admitted.

The other exceptions were principally to the admission of evidence of acts and declarations of Ann Melton. The prisoner contended that such evidence should not go to the jury, unless a common design between him and Ann Melton had first been established. His Honor overruled the exceptions, and the testimony was admitted.

Verdict of Guilty; Rule for a new trial; Rule discharged; Motion in arrest of judgment; Motion overruled; Judgment of Death, and Appeal.

Attorney General and Boyden, for the State.
Vance, for the prisoner.

PEARSON, C. J. The case discloses a most horrible murder, and the public interest demands that the perpetrator of the crime should suffer death; but the public interest also demands that the prisoner, even if he be guilty, shall not

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