State v. . Mallett

Douglas, J., dissenting. The late hour at which I have received the opinion of the Court on the petition for reargument, and the difficulty of examining two hundred and eighty-two pages of unprinted record, make it impossible for me to do justice to the case in any opinion that I may write; *727 but I am so firmly satisfied that these defendants have not had a fair trial in the Criminal Court, that I must at least, enter my earnest dissent. This case was appealed by the defendants to the Superior Court, where they were granted a new trial by Judge Hoke, in the following judgment: “This cause coming on to be heard, on appeal of defendants from a verdict and judgment had against them in the Criminal Court of said county, the • Court is of opinion that there was substantial error committed on the trial of the cause against the defendants therein, for that, among other reasons, the facts developed on examination of the defendants in proceedings supplemental to execution were, over their objections, used to effect their con•viction, both directly in evidence has Dr. Baker and Mr. Henry Gilliam, and indirectly by placing before this jury tho evidence of these defendants, brought out on cross-examination before S. S. Nash, Referee, in which examination the defendants were asked concerning the same matters developed in said supplementary proceedings. It is true the case on appeal state that the Judge held, and so declared, that statements made by the defendants in said supplementary proceedings were not competent evidence against the defendants on this trial, but it is perfectly patent on inspection of the evidence set out that the facts brought out on examination of the defendants in said supplemental proceedings were necessarily used to develop,their evidence before Nash, Referee, and both in this and in the other particulars directly, was this examination in supplemental proceedings used to effect their conviction contrary to the statute,” etc. The fact that was “perfectly patent” to the able and learned Judge who granted the new trial, is equally so to me. I can notice only a few of the errors appearing in the record. It appears that' the prosecuting witness, Baker, and his *728 attorney, were present at the examination of the defendants under supplementary proceedings, and conducted the examination, went before the grand jury as witnesses, on the bill of indictment, and were witnesses on the trial. Baker, on cross-examination, was asked the question: “Did you carry with you before the grand jury, when you testified there in this bill of indictment, the evidence taken in the supplementary proceedings ?” This question was clearly competent and material as impeaching evidence, and yet it was excluded on objection by the State. In this I think there was substantial error.' Again, the prosecutor, Baker, while testifying as a witness, was permitted to introduce what he said was the day-book and ledger of the defendants, to explain the character of the books, to read from them, and to comment on them. Can this be permitted, especially when the witness testified that his first knowledge of the book was received at the supplementary proceedings examination before the Clerk? I think this is error. Again, the first bill of indictment, that had been quashed, was introduced in evidence by the State on the general issue, over the objection of the defendants. In this I think there was error. Again, the defendants offered four witnesses to show what was testified to' before the grand jury. This was clearly competent and material as tending to show the animus of the witness. T think it should have been admitted under’ the authority of State v. Broughton, 29 N. C., 96, a very instructive opinion by Chief Justice Eur RiN. Again, the State was permitted to introduce the register óf a hotel at Kelford to show that H. T. Latham had registered his name as IT. T. Thomas. Latham was not on trial, and yet this register was introduced as substantive evidence against the defendants, who had no connection with it whatsoever, on the ground that “there wore prima, facie grounds for believing in the existence of the conspiracy.” T *729 do not clearly understand wbat tbat means, bnt can we say tbat under a general plea of not guilty evidence is admissible upon the sole ground tbat there are prima facie grounds for believing the defendants to be guilty ? If it does not mean this, what does it mean ? The conspiracy was the sole offense charged, and can that be assumed, as proved before verdict ? Again, upon the motion to quash, or the plea in abatement, or even upon the trial, why could not the defendants introduce members of the grand jury to show what the witnesses Baker and Gilliam had testified before them ? State v. Broughton, supra. Other errors appear to exist, but I have no time for elaboration. That a new trial should be granted as a matter of justice, is clear to me. I do not see why this Court can not pass upon all the exceptions appearing in the record before us. It is practically the record of the Criminal Court, with the addition of the judgment .of the Superior Court, and the exceptions of the State. Every exception of the defendants is before us as fully as before the Judge of the Superior Court-, and in the same exact words. I do not see the necessity for the adoption of an arbitrary rule that only complicates the system of appeals, adds to the labor and costs of both appellants and appellees, and may, in some cases, as in the present, work a substantial injustice. What good can it accomplish to counter-balance these evils ? The Legislature originally provided for appeals directly to this Court, which would have avoided the difficulties now before.us; but we held that provision unconstitutional in Rhyne v. Lipscombe, 122 N. C., 650. I think that we should now, as far as we have the power, simplify appeals so as to bring all causes to a final determination with as little cost, trouble and delay as is consistent with the proper administration of justice.