State v. . Slagle

*897 Walkee, J., after stating tbe case: The theory of the State was, that Sol and Latt Slagle killed Luther Merrill at the still and then carried his body to the wagon at the road and thence to the place where it was found on the following Wednesday. With plain and direct evidence of this sort, as to the actual killing of the deceased by the defendants, Sol and Latt, there can certainly be no” foundation for defendant’s Exceptions 5 and 7, to the judge’s refusal to give judgment as of nonsuit against the State, at the conclusion of the State’s testimony, and again, at the conclusion of all the testimony. Exceptions 1 and 2 were taken to evidence which detailed circumstances connected with the disappearance of the deceased. Exception 4 was to similar evidence, and in each case, it seems that this evidence was material as part of the res gestrn. Exception 5 was taken to evidence plainly admissible as to Charles Slagle, and confined expressly by the judge to the purpose for which it was admissible, and after Charles Slagle was eliminated, as a defendant, by a judgment of nonsuit in his favor, the judge, again in his charge to the jury, expressly told them that they must disregard this evidence. The defendants, in their brief, refer to an error which nowhere sufficiently appears in their assignments of error. It is thus set out in the record: “It is agreed by the attorneys of record, whose names are hereto attached, that, at the time the motion was sustained as to Charles Slagle, as set out in the record, there was no charge of distilling against Charlie Slagle, but the court ordered him held, pending an indictment based upon the testimony given by Jim Lawrence, Oney Kilpatrick and Eli Kilpat-rick, and ordered Charlie Slagle in custody, fixing his bond at one thousand five hundred dollars ($1,500), and all this was done in the presence of the jury. This may be treated under the defendant’s Exception No. 6.” But we will discuss it nevertheless. The right of a nisi prius judge to order a witness, or anyone else, into immediate custody for a contempt committed in the presence of the court in session, is unquestioned. But the committing of a witness, in either a criminal or a civil action, into immediate custody for perjury in the presence of the jury is almost universally held to be an invasion of the rights of the party offering the witness, and as an intimation of opinion on the part of the judge, prohibited by the statute. S. v. Swink, 151 N. C., 176, and the cases there cited. In this case, the charge that Charles Slagle was guilty of “blockading” was dependent upon the testimony of Jim Lawrence and the two Kilpatricks. As it turned out, the State’s case against the two defendants, Sol and Latt Slagle, for murder, was also largely dependent upon the credit the jury should give to these witnesses. It seems that this was not an expression of opinion by the judge upon their eredi- *898 bility. In no sense, was it a direct attack upon the credit of a principal witness .such as there was in SwinVs case and the cases similar to it. There was nothing to do in the case of Charles Slagle except to discharge him after the nonsuit, unless there was another charge pending against him, and so this was only an attempt by the judge to hold him to answer to another charge, which arose out of the evidence, and the effect of this was not to give these witnesses any additional credit, or to express an opinion favorable to the credibility of their testimony, but simply to say that, on the whole case, there was probable cause against Charles Slagle, and a necessity to investigate further, which investigation could only be made by a jury, in like manner as the pending investigation, as to the other two Slagles, was being made by a jury. The course of the presiding judge in demanding bail of Charles Slagle, upon the charge of unlawfully dealing in liquor, commonly called “blockading,” which is a violation not only of our statute, but of the “Volstead Act” of Congress, did not, in law, prejudice the defendants. The judge did not express any opinion as-to whether Slagle was guilty, or as to whether the testimony of the two witnesses was true, or not, but he merely acted upon the suspicion that the simple oath of the two men, as to the fact, were sufficient to show probable cause, as to Slagle, and added nothing to the credibility of the other two men, and we are quite sure it was so intended by the judge and not so regarded by the jury. It was one of the ordinary incidents of a trial, and while it may always be better to send the jury out before taking such action, it sometimes becomes necessary, for a judge to act with great promptness in such eases to prevent any escape of the offender. S. v. Swink, supra, cited by the defendants’ counsel in support of this alleged exception, is not at all in point. There the Court by its action directly impeached the credibility of the party’s principal witness, by binding him over for perjury, which, of course, would prejudice the defendant for whom he had testified. We doubt if this exception is properly raised in the record, but we have, nevertheless, commented upon it. The court admitted certain evidence which was competent against Charles Slagle so long as he remained a defendant, and when he was retired by the nonsuit, the judge properly instructed the jury not to consider it. Several exceptions were taken to the judge’s statement of contentions of the parties, but only one was called to the court’s attention, and that raised an issue between the judge and counsel as to what the evidence was' on the particular point. This relates to the supposed evidence as to defendants’ being seen while tracking Merrill and as to whiskey being found near the house. The response of the judge was sufficient to protect the rights of the defendants. He told the jury that if there were *899 any contentions, supported by evidence, to consider them, wbicb implied that those, not so supported, should not be considered. The counsel could not himself remember with certainty whether the contention then being stated was supported by evidence. He merely said that he did not then recall any such evidence. There is no merit, at all, in the other exceptions and they, therefore, require no separate discussion. We have carefully reviewed and considered this very long record, and find no reversible error therein. The defendants’ counsel safeguarded the rights of the defendants at every point by a very able argument, but there is no reason for disturbing the judgment. No error.