State v. . Outerbridge

Ashe, J. The questions presented for our decision in this case arise from the exceptions taken to the ruling of His Honor in the progress of the trial, and we will consider them in the order in which they were taken: 1. Two of the jurors who were drawn were challenged by the prisoner for cause, and the cause assigned was that they had acted as grand or petit jurors within two years next preceding that court. They stated on their examination that they had served as petit jurors in the inferior court for that county, but had not acted as grand or petit jurors within two years next preceding that term of the court, in the superior court. There was no error in overruling this exception. The act of 1879, ch. 200, under which the. exception was taken, reads: “ That it shall be a disqualification an d ground of challenge to any tales juror that such person has acted in the same court as grand or petit juror within two years next preceding such term of the court.” They must have 'acted in the same court, otherwise there is no disqualification. *621 2. When one of the witnesses for the state, upon his examination in chief, stated that on. the next day after the death of the deceased, the person of the prisoner was searched and a pair of bullet moulds was found in his pocket, and a ball taken from an oak tree near where the body of the deceased was found and one taken from his body fitted the moulds, prisoner’s counsel without objection to the statement interrupted the examination and asked the witness if the bullets and moulds were in court, to which the witness replied he supposed they were in the possession of the solicitor ; and after they were produced and identified by the witness, and the bullets fitted in the moulds in view, of the jury, the counsel for prisoner then moved the court to withdraw from the jury the statement of the witness that the bullets fitted the moulds, which His Honor properly refused to do. There is nothing in the exception. The evidence was altogether pertinent. The state was relying upon circumstantial evidence to establish the guilt of the prisoner. On the evening of the death of deceased, signs were discovered on the hearth in the house of prisoner of bullets having been recently moulded; his gun bore fresh marks of having been fired; a bullet was found in a tree near where the deceased fell, killed by gun-shot wounds, and one was found in his body. The fact, then, that these bullets fitted in the moulds which were found in his pocket was a link in the chain of evidence that pointed to the prisoner as the perpetrator of the bloody deed, and was clearly admissible ; but if it were not, the prisoner’s objection came too late, and was waived by his interrogating the witness. Meroney v. Avery, 64 N. C., 312. 3. No witness having testified that the place where the deceased was killed was in the county of Bertie, the prisoner’s counsel prayed for the following instructions, to-wit: “ It is the duty of the state to satisfy the, jury beyond a reasonable doubt that the offence was committed in manner *622 and form as charged in the bill of indictment, and as there is no evidence before the-jury that Peter Freeman was shot, assaulted or died in Bertie county, it is their duty to acquit.” The court declined to give the instruction, holding that under section 70, chapter 33 of Battle’s Revisa), the objection could only be raised for the benefit of the prisoner by plea in abatement. Since the act of 1844, it has not been necessary on the trial of an indictment, either for felony or misdemeanor, for the state to prove the offence to have been' committed in the county where the defendant is indicted. The act is very broad in its terms, and the language used is “that in the prosecution of all offences it shall be deemed and taken as true that the offence was committed in the county in which, by the indictment, it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement.” And the act proceeds to distinguish between felonies and misdemeanors in respect to the effect of the finding of the court upon the plea against the defendant. In misdemeanors judgment will be pronounced against the defendant as upon conviction, but in felonies he will be allowed the right to be tried upon his plea of not guilty. But in felonies, as in misdemeanors, the objection can only be taken by plea in' abatement. There was no error in the refusal to give this instruction. The prisoner finally moved in arrest of judgment on the ground that the bill of indictment did not distinctly and sufficiently charge that the crime was committed in the county of Bertie. Upon a careful perusal of the indictment we find that time and place are laid to every material fact charged, and that there is no ground for "the arrest of the judgment for any alleged defect in the bill of indictment or error in the record. There is no error. Let this be certified to-' the superior *623 court of Bertie county, that further proceedings maybe had agreeably to this opinion and the laws of the state. Per Curiam. No error.