State v. . Coley

Avery, J.: No principle of evidence is more clearly settled in North Carolina, nor by a longer line of decisions, than that a witness will not be allowed to testify’' as to *883 character until he shall have first qualified himself by stating that he knows the general reputation of the person in question. State v. Wheeler, 104 N. C., 893; State v. Gee, 92 N. C., 756; State v. Perkins, 66 N. C., 126 ; State v. Parks, 3 Ired., 296. This the witness failed to do, apd the objection to the proposed testimony as to character was properly sustained. There was no error in the refusal of the Court either to instruct the jury that they could return a verdict of murder in the second degree (under the Act of 1893) or that it was in their power to return a verdict for a less offence than murder. It is settled beyond all room for dispute that the Legislature in the act repealing a law may by a saving clause retain the provisions of-the existing law in force as to all crimes committed prior to its passage. State v. Halford, 104 N. C., 874. The controversies that have heretofore provoked discussion have arisen upon the question whether particular language could be construed as implying a legislative intent to limit the operation of an act to offences committed after its passage and leave the pre-existing law in force as to those previously committed. State v. Massey, 103 N. C., 356; State v. Long, 78 N. C., 571; State v. Williams, 97 N. C., 455; State v. Putney, Phillips’ Law, 543. As the purpose that the Act of 1893 should operate prospectively and that the common law should remain in force as to homicides committed prior to its passage is expressed in unequivocal terms in the proviso to the act, we think that the question whether the offence with which the prisoners are charged should be classified as murder in the second decree did not arise. The view presented by the testimony of the prisoner Calvin Coley is-that most favorable to the defence, and though he stated that there was a mutual affray, commencing between the deceased and himself, he admitted *884 that his brother, the prisoner Thomas Coley, from the first took part with him and very soon after the engagement began had the deceased upon the ground and held him down while he (the prisoner Calvin) got the ax and knocked him in the l^ead. This witness admitted that the deceased used no pistol or other weapon and was engaged in an unequal encounter with two men. "When, in such an unequal contest, the deceased was thrown to the ground and pinioned there by one while the other crushed his skull with an axe, the slight provocation shown was not sufficient to mitigate the offence of killing with a deadly weapon and with such deliberate cruelty. The force used was excessive and the manner of using it evinced the fixed purpose to kill. They were not acting on the defensive, because the deceased was held prostrate upon the ground, nor under the furor of one who, blinded by the momentary passion provoked by an assault, strikes without deliberation. The holding of the deceased by one till the other procured the axe, and the slaying by the other of a person so perfectly helpless, is inconsistent (because of its deliberate character) with the legal conception of a killing in the heat of the passion previously engendered in an encounter. There was no error in giving the instruction numbered 16, and which embodies the principle we have stated. The general rule is that no witness, other than such as are declared by the Court upon' examination to be experts, shall be allowed in the face of objection to express his opinion upon matters to which the inquiry of a jury is being directed. One of the exceptions to this rule is that any person who has sufficient intelligence to testify as to any subject is allowed to express an opinion upon a question of the sanity of another person, to be weighed by the jury according to their estimate of its value. But while testimony as 'to mental capacity falls within the exception *885 to the rule governing the admissibility of proof of opinions, we know of no principle upon which hearsay evidence of what experts or non-experts have thought or said of the sanity or insanity of a particular person can be made competent. The attempt to prove insanity by general reputation was not less objectionable and incompetent than would have been the attempt to show by a third party what a particular individual thought or said. It was the right of the prisoners to be present when anything was said or done that might prove prejudicial to their interests, but the Court gave the jury no instructions in their absence. They had no ground to complain, because the Judge took the precaution to inquire whether the jury desired any such information as would make it necessary to send to the jail for them. In repeating the instruction previously given, and in giving the admonition complained of, we do not think that the Judge overstepped the limit of his power by expressing or even intimating an opinion as to the facts. Upon a careful review of all of the exceptions we are of opinion that there is No Error.