State v. . Gould

Ashe, J. The first exception taken by the prisoner was upon the ground that the judge failed to read to the jury the testimony of the prisoner, as taken down by him during the trial. The exception is founded upon section 237 of the Code of Civil Procedure, and section 413 of The Code, which make it the-duty of the judge in charging the jury, whether in a civil or criminal action, to state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon. The language of these sections is the same as that of section 130 of chapter 31 of the Revised Code, except that in the two former sections the word plain is substituted for the word full in the latter. The sections, as they stand in The Code and: C. C. P., have been repeatedly construed by this court. In State v. Grady, 82 N. C., 643, it is held that if evidence favorable to the prisoner be omitted by the judge in recapitulating the testimony to the jury, it is the duty of the prisoner’s counsel to call it to the attention of the court, that the same may be supplied; and after verdict, an exception grounded on such omission will not be sustained. This decision was cited and approved in State v. Reynolds, 87 N. C., 544; and to the same effect is State v. Jones, Ib., 547. The error assigned in the second exception was to the super-added remarks of the judge in his charge on the subject of reasonable doubt. We are unable to conceive upon what ground the prisoner should have supposed that he could have been prejudiced by those remarks. His Honor told the jury that reasonable doubt meant that, after a consideration of all the evidence, *663 with all the light derived from the argument of counsel and the instructions of the court, they ought not to convict the prisoner, unless they felt that their minds were involuntarily led to the conviction that the prisoner was guilty as charged. So far from impairing the force of bis charge on the subject of reasonable doubt, the explanation of His Honor was more favorable to the prisoner than was perhaps warranted by law. The next exception was founded upon an alleged variance between the instrument with which the mortal wound was inflicted and that charged in the bill of indictment. The bill charges that the wound was given with a rock, and the proof rather tended to show that it was inflicted with a stick. It can make no difference whether the deceased was struck with a rock or a stick. For it is held that where the instrument of death laid in the indictment and that proved are of the same nature and character, and the method of the operation is the same, though the instrument is different, there is no variance: as if it be proved that the deceased was killed by any other instrument, as with a dagger, sword, or the like, capable of producing the same kind of death as the instrument stated in the indictment, the variance will not be material. Rex v. Mackally, 9 Co., 67a; Gilbert Evi., 231; Rex v. Briggs, 1 Moody C. C., 318. And where the offence was charged to have been committed with a sharp instrument, and the evidence was that- the wound was . partly torn and partly cut, and was done with an instrument not sharp, it was held that the charge in the indictment was proved, and the degree of sharpness was immaterial. Rex v. Grounsell, C. & P., 121. The remaining ground urged for a new trial is that the jury were tampered with. But the judge having found the facts to be, that one person passed through the room where the jury were kept during the night, and another was found asleep in a stupid, drunken condition on a bench in the rear of the room, and was put out of the room as soon as discovered, but that neither of them had any communication with any member of *664 the jury, there is no ground for even a suspicion that there was an undue influence brought to bear upon the jury. And even if the circumstances had been such (which was not the case here) as to show that there -was an opportunity and chance for exerting an influence upon them, it would have been a matter of discretion with the presiding judge, whether he would have granted a new trial. State v. Tilgham, 11 Ired., 213; State v. Miller, 1 Dev. & Bat., 500; State v. Brittain, 89 N. C., 481. There is no error. Let this be certified to the superior court of Montgomery county that the case may be proceeded with in conformity to this opinion and the law of the state. No error. Affirmed.