State v. . Sheets

Ashe, J., after stating the facts. The first exception taken by the defendant was that the state’s counsel was permitted by the court to make a preliminary statement of what the state expected to prowe. .So far from the practice being objectionable, we think it is to be commended; for its effect is to direct the attention of the jury to the material points in the evidence. It is a practice which has long prevailed in this state. *548 The second exception, to the admission of the evidence in regard to tli.e whipping the child of the prosecutor, and the prosecution of the defendant by him for the offence, cannot be sustained. The evidence was clearly admissible. “Malicious mischief consists in the wilful destruction of personal property from actual ill will or resentment towards the owner or possessor.” Sta te v. Robinson, 3 Dev. & Bat., 130; State v. Jackson, 12 Ired., 329. The ill will towards the owner of the property destroyed is an essential ingredient of the crime, and any competent evidence that tends to establish such a state of feeling on the part of the defendant towards the prosecutor, is admissible. The third exception, that the court allowed the witness, Hancock, to relate the whole of the conversation one Miller had had with him in regard to the poisoning the mules, was properly overruled. For, on the cross-examination of the witness by the» defendant’s counsel, a part of this conversation had .been called out; and it is too well settled as a rule of evidence to admit of a question, where that is done, the opposite party has the right to put the whole conversation in evidence. The fourth exception, that, the court permitted the witness to state “that he would have been willing to pay fifty dollars to get the defendant away, so that the witness could be at peace,” is without merit. The statement was made on the re-direct examination, and was on the same line of evidence as that elicited from the witness on his cross-examination by defendant’s counsel. On that cross-examination he testified that the defendant had moved away from where he was living near witness; that the move was agreeable to him, and that he wanted him to move, but would not have done anything to make him move. Whatever object the defendant may have had in drawing out from the witness the testimony given on the cross-examination, that given by him on the re-direct examination certainly tended to the same end. We are unable to see the ground of the defendant’s objection. *549 The fifth and sixth exceptions were to the competency of Dr. Lewis and Dr. Bulla as experts. Dr. Lewis stated that he had attended lectures at a medical college and had practiced his profession for seven years; that, although he had never been called to a case of poisoning, he had experimented some with poison on dogs and other animals, and he thought he was qualified to give an opinion as to the effects of poison. Dr. Bulla testified that he had been a practicing physician since 1845, and he had had some experience of the effect of poison on the human species, but very little in regard to brute animals, and he thought he was competent, to a certain extent, to give an opinion. There was no error in the ruling of His Honor that both of these physicians were competent to testify as experts. When the professors of science, as physicians, for instance, swear that they are able to pronounce an opinion in any particular case, although they say at the same time that precisely such a case had not before fallen under their observation or under their notice in the course of their reading, it is competent to give in evidence their opinion. State v. Clark, 12 Ired., 151. To the same effect is Horton v. Green, 64 N. C., 64, which was an action to recover damages for deceit in the sale of amule alleged to have glanders. One Dr. Rivers was examined, who had been practicing his profession for eleven years. When asked whether? from his general knovdedge of diseases, he could tell whether the symptoms in that case indicated that the disease was of long standing or not, he answered that he had no particular acquaintance with diseases of stock, but from his books, observation and general knowledge of diseases of the human family, he could tell whether certain symptoms indicated that a disease is of recent or long standing, though he had never seen a case of glanders unless that was one. It wrns objected that the witness had not qualified himself to answer as an expert, but this court held that he was competent. The seventh exception was to the refusal of His Honor to have the jury polled before their verdict was announced. There *550 was no error in this. It is certainly not error to poll them after the announcement that they have agreed in their verdict, and that is the approved and usual practice. In Watts v. Brains, 1 Cro. Eliz., 778, where, upon the agreement of the jury, they came to the bar and the foreman pronounced their verdict that the defendant was not guilty; “the court misliking thereof, being contrary to their direction, examined every one of them by the poll whether that was his verdict/' This decision is cited by this court with approval in State v. John, 8 Ired., 330; and Mr. Bishop says “the object of polling is merely to ascertain whether the verdict rendered by the foreman in behalf of himself and the rest is really concurred in by the others; therefore the inquiry is restricted to the question, ‘ is this your verdict?'” 1 Bish.Cr. Pro., §830. The eighth exception was to the recording the verdict on account of what the juror, Hill, said when the jury were being polled. When his name was called and he was asked to say whether the defendant was guilty or not guilty, he answered, “ Well, I suppose I must go with the rest.” The court directed him to respond “guilty” or “not guilty,” and thereupon he answered “guilty.” There was no ground for refusing to l’eceive the verdict. The last answer of the juror was an assent to the verdict of guilty. The case of State v. Godwin, 5 Ired., 401, is very like this. There, the prisoner was tried for murder, and upon the return of the jury into court, they were polled at the prisoner’s request. Eleven of the jurors each answered that he found the prisoner guilty. The remaining juror answered, that when the jury first went out, he was not for finding the prisoner guilty, but that a majority of the jury were against him, and that he then agreed to the verdict, as delivered by the foreman. He was then asked, “ What is your verdict now?” and he replied, “I find the prisoner guilty.” And it was held that there was no objection in law to the verdict. To like effect is the case of State v. Swink, 2 Dev. & Bat., 9. The other exceptions taken by the defendant were taken after verdict, upon a motion for a new trial. They were: *551 First, that the judge failed to stop the state’s counsel in his abuse of the defendant. This objection came too late after verdict. Knight v. Houghtalling, 85 N. C., 17. But if it had been taken in time, the error was corrected by the court in its charge to the jury. Secondly, to the rehearsal by the court of a part of the evidence to the jury, in the absence of the defendant. It was no ground for a new trial. The indictment is only for a misdemeanor, and the defendant, we presume, was out on bail, as the record does not show that he was in custody. If he saw proper to absent himself during the progress of the trial, it was his own fault. His counsel were present when the evidence was rehearsed, and there was no objection on their part, nor complaint made by them. and it was not pretended, when the motion for a new trial was made, that any prejudice had resulted to the defendant by the rehearsal. See State v. Paylor, ante 539, decided at this term. Our conclusion is, that there is no error. Let this be certified to the superior court of Randolph county, that the case may be proceeded with according to this opinion and the law. No error. Affirmed.