State v. . Debnam

MerbjmoN, J. The motions, first, that to quash the criminal warrant, and secondly, that in arrest of judgment, were properly disallowed. The city ordinance — certainly so much of it as the defendant is charged with having violated — is valid, and substantially like that of the City of Raleigh, upheld in State v. Cainan, 94 N. C., 880. Such acts and conduct of individuals forbidden by it do not, of themselves, constitute a nuisance, or other criminal offence, under the general criminal laws of the State, but are such as, with the view to the peace, good order and well-being of society, especially in dense populations, should be prohibited by proper municipal ordinances, enforced against those who violate them by criminal prosecutions and just punishment. The defendant did not request the Court to give the jury any special instructions, nor except to the ihstructions given, nor object to the manner in which it recapitulated the evidence to the jury, until after the verdict was rendered. Nor does it appear that the Court stated any proposition of law erroneously to the jury, nor was any exception taken, after verdict, on that account. It was too late after verdict to complain that the Court did not give some particular instruction not asked for, or that it failed 'to present or suggest to the jury a particular view of the evidence, favorable to the defendant. If the latter desired this to be done, he had the right to present proper requests for that purpose on the *718 trial. As he failed to do so in apt time, he has no just ground of complaint. If, bjr inadvertence, he failed to make such requests, and probably suffered prejudice thereby, this might, be ground for a new trial, to be granted in the discretion of the Court — not otherwise. Any other rule would greatly tend to unduly multiply trials and encourage carelessness, negligence and want of proper circumspection on the part of parties to actions and their counsel. State v. O’Neal, 7 Ired., 251; State v. Grady, 83 N. C., 643; State v. Calloway, 90 N. C., 118; State v. Gould, Ibid., 658. No question was raised on the trial as to reasonable doubt in the minds of the jury in respect to the defendant’s guilt, and as the Court was not requested to instruct them that they must be satisfied of it, beyond a reasonable doubt, that it failed to do-so is not ground for a new trial, especially as the offence charged is a mere misdemeanor. State v. Sears, Phil. 146; State v. Knox, Ibid., 312; State v. Parker, Ibid., 473. Nor do the general remarks of the Court, in commenting on the abuse of privilege of counsel, made on the trial, in response to a request that it interpose its authority to protect a witness for the prosecution from unjust abuse of the counsel for the defendant, in the course of his address to the jury on the trial, entitle the defendant, as a matter of legal right, to have his motion for a new trial, based upon that ground, allowed. The remarks of the Court referred to did not, in their nature, legal effect and application, tend to prejudice the defendant before the jury, especiall3r as the Court, in declaring its authority and duty to check counsel when they used opprobrious and insulting epithets and applied them to witnesses, said, “ that the counsel in this case had not used any such epithets.” In other respects, what the Court said did not apply to the counsel, unless by possible inference. The defendant did not suffer prejudice as a legal consequence of what was said, and if he did, in fact, this should have ap *719 peared affirmatively by affidavit, or otherwise, to the satisfaction of the Court, to entitle him-to a new trial. It is only when the legal consequence of what is said or done on the trial is to the prejudice of a party, before the jury, that he becomes entitled, as matter of legal right, i o a new trial. In other cases it must appear affirmatively tljat he suffered positive injury. State v. Hicks, Phil., 441; State v. Whet, 5 Jones, 224; Sprinkle v. Foote, 71 N. C., 411; State v. Underwood, 77 N. C., 502; State v. Savage, 78 N. C., 520; State v. Branning, Ibid., 555; State v. Laxton, Ibid., 564. The evidence was, in some respects, conflicting, and the Court, in recapitulating it to the jury, expressly called their attention to such conflict, stating that a witness for the prosecution had testified as to certain facts, and witnesses for the defendant had testified just the contrary. In this there was no ground for complaint. It is true, the counsel for the defendant, in his motion for a new trial, says, in a measure, to the contrary, but the Judge settled the case on appeal, and it is clear and well settled, that we can only take notice of, and act upon, the facts as stated by him. He is a high and responsible officer of the law, it reposes a great trust in him, and it is his province to state the material facts in settling cases on appeal. Moreover, he is disinterested — he sees what is done, and knows and takes note of the facts appearing in the course of the action before him. Hence, we must accept the case settled on appeal as importing absolute verity, for all the purposes of correcting errors assigned. Any other course of procedure and practice would be unreasonable, subversive of judicial propriety, and give rise to endless and disgraceful confusion. McDaniel v. King, 89 N. C., 29; Currie v. Clark, 90 N. C., 17; State v. Miller, 94 N. C., 902; State v. Gooch, 94 N. C, 982. There is no error. Let this opinion be certified to the Criminal Court, according to law. Affirmed.