STATE C. Cox.

STATE v. SIMEON COX.

(Filed 17 November, 1909.)

Witness, Tender of-Cross-Examination-Evidence-ImpeachingCorroborative.

Upon the tender of a witness by the defendant to the State, without examination by him, it is error to admit in evidence, upon cross examination, a letter prejudicial to defendant, which this witness testified he had written, either to impeach the witness, for he has not testified, or to corroborate the prosecuting witness, who, it appears, has not testified concerning the matters therein stated.

APPEAL from Long, J., July Term, 1909, of RANDOLPH.

Indictment for incest. This case was before this Court at Spring Term, 1909, and is reported 150 N. C., 846. On that appeal of defendant a new trial was granted. The defendant was again convicted, and appealed to this Court.

Attorney-General and G. L. Jones for the State.
Morehead & Sapp and C. L. Holton for defendant.

MANNING, J. The defendant has been twice tried and convicted of the crime of incest, perhaps the most detestable of all crimes. We feel again constrained to grant him a new trial. During the trial, and near the close of the evidence, the defendant tendered Pliny Cox to the State. The witness had been subpoenaed for and sworn on behalf of the defendant. The witness was a son of defendant and a brother of the prosecuting witness. The record shows: "Pliny Cox (tendered by defendant) is examined by the State. Letter of 23 June, 1909, marked 'Exhibit A,' is handed to witness, and he says that he wrote said letter; that no change in facts communicated in letter to Alta (the prosecuting witness). Letter is offered in evidence by the State. The defendant objects, for that it has no reference to any fact testified to by any witness; that it neither corroborates nor contradicts any testimony in the case; that its tendency is merely to impeach witness. The State offers the letter to corroborate the witness, Alta Smith, to the extent it may do so. For this purpose, and this only, the letter is admitted and the jury so instructed."

In his brief, the Attorney-General, with his usual candor, admits that he can find nothing in the letter, after a careful study of it, which corroborates the testimony of Alta Smith. In this opinion of the Attorney-General we concur. The letter could not be used to impeach the witness, Pliny Cox, because he had given in no testimony. In Bracegirdle v. Bailey, 1 F. & F.,

STATE . HANCOCK.

536, Byles, J., said: "Inasmuch as he has proved nothing, you cannot cross-examine him to discredit him." In Toole v. Nichol, 43 Ala., 406 (419), the Court said: "The purpose of a crossexamination is to sift the testimony of a witness, and to try his integrity. When he has not been examined in chief, there can be no necessity for this." In Ellmaker v. Buckley, 16 S. & R., 72, the Court uses this strong language: "It would be palpably absurd when applied to a person who has given no evidence at all." The letter having been offered by the State and allowed, the defendant was necessarily compelled to attempt to break its force by an examination of the witness. In speaking of this letter, the Attorney-General says: "I would like to maintain that the introduction of this letter was, at any rate, harmless error, but I cannot say so. The letter was, in the main, an exegesis, bad as to law and worse as to scripture; but it is easy to see that it may have been deeply prejudicial to the defendant." The defendant had nothing to do with the writing or sending of this letter, and seems not to have known anything of it until it was presented at the trial. For the error pointed out, we think the defendant entitled to a

New trial.

STATE v. L. G. HANCOCK.

(Filed 18 November, 1909.)

1. Verdict Set Aside-Discretion-Appeal and Error.

The refusal of the trial judge to set aside a verdict as being against the weight of the evidence is discretionary with him and not reviewable on appeal.

2. Insanity-Burden of Proof-Verdict-Recommendation for Mercy -Some Doubt-Proof Required.

Upon the trial of a criminal offense in which the plea of intermittent insanity at the time charged is set up as a defense, a verdict rendered that, "we return a verdict of guilty; we ask the mercy of the court for the reason that some of the jurors have some doubt as to the sanity of the defendant," is sufficient for conviction, the first sentence being a complete verdict, and the balance surplusage, merely recommendatory, showing that some doubt existed in the minds of some of the jurors, but not sufficient to overcome the requirement that the burden was on defendant to prove insanity to their satisfaction.

APPEAL by defendant from Moore, J., February Term, 1908. of GUILFORD.

The facts are stated in the opinion.

STATE . HANCOCK.

Manly & Hendren and E. E. Gray, with Attorney-General, for the State.

Watson, Buxton & Watson, for defendant.

CLARK, C. J. The defendant, a trusted employee, as manager at Winston of a branch business, whose main office was at Memphis, Tenn., embezzled something over $3,100. He fled with some $2,500 of this and $100 of jewelry which he had bought with his employer's money, and was arrested in San Francisco with $1,400 of the money on his person, unspent.

The record presents only two assignments of error.

1. "Because the verdict was against the weight of the evidence." This is a matter in the discretion of the trial judge. Bird v. Bradburn, 131 N. C., 488; State v. Rose, 129 N. C., 577; Edwards v. Phifer, 120 N. C., 406.

2. Because of the form of the verdict. The verdict of the jury as recorded is: "We return a verdict of guilty. We ask the mercy of the court, for the reason that some of the jurors have some doubt as to the sanity of the defendant."

The first sentence is the verdict in this case. It is complete: "We return a verdict of guilty." The next sentence is a request to the court and is no part of the verdict.

In State v. McKay, 150 N. C., 813, the jurors had rendered a verdict of "guilty of murder in the first degree, with mercy.' They were then directed by the court to find a verdict of "guilty" or "not guilty," whereupon they returned a verdict of "guilty." In writing the opinion of the Court, Brown, J., said: "We do not think the added words 'with mercy,' vitiated the verdict, had it been so received. These words simply amounted to a recommendation for mercy, and did not leave in doubt the grade of the verdict rendered. They were surplusage and no part of the verdict."

"A statement of the grounds of the verdict or a recommendation to mercy may be disregarded as surplusage." Abbott Cr. Trial Brief, 727, and cases cited. His Honor charged the jury that "if from the evidence they found that, just prior to the alleged acts of the embezzlement by the defendant, the defendant had a diseased mind, and such a disease was a permanent one, then the court charges you that the burden is upon the State to satisfy you beyond a reasonable doubt that at the time the defendant embezzled the money charged, if you find he did embezzle it, the defendant was sane-that is, he knew right from wrong and the nature and consequences of his acts; and if you are not so satisfied, you should acquit; but, if you should find from

STATE v. HANCOCK.

the evidence that the defendant, at the time aforesaid, did have a diseased mind, but that the character of the disease was such that the defendant had lucid intervals; that if you find he was sane at times, and at times insane, then the court charges you that the burden is upon the defendant to satisfy you, not beyond a reasonable doubt, but to satisfy you that at the time he took the money and committed the alleged acts of embezzlement, as charged in the bill of indictment; if you find he did take said. money and was guilty of embezzlement, that he was at the time of said act of embezzlement insane-that is, that he did not have sufficient mental capacity to know right from wrong and the consequences of the acts and deeds he was committing and if he has not so satisfied you, you should convict the defendant of this charge." The defendant excepted.

Taking the first part of this charge as correct, if the jury found the defendant permanently insane, they found him sane at the time of the commmission of the act, beyond a reasonable doubt, but said that "some of the jury have some doubt of the sanity of the prisoner," clearly not amounting to "a reasonable doubt," as we must presume that the jury followed the charge of the court. Indeed, the defendant only sought to prove "intermittent insanity with lucid intervals," and the court correctly charged that the burden was on the defendant to show, not beyond a reasonable doubt, but to the satisfaction of the jury, that the embezzlement was accomplished while the defendant was insane, and the language of the jury evinces that it was not so satisfied.

But the first part of the charge was erroneous as regards the State. By the uniform rulings in this State, the burden of proving insanity in a criminal case is on the defendant who sets it up. State v. Norwood, 115 N. C., 793; State v. Potts, 100 N. C., 457; State v. Payne, 86 N. C., 610; State u. Vann, 82 N. C., 637; State v. Starling, 51 N. C., 366, and there are many others in our Reports. This is sustained by the great weight of authority elsewhere, though there are some States which hold a different doctrine. In State v. Clark, 101 Am. St., 1012, the jurisdictions maintaining the differing doctrines are marshalled, as is also done more exhaustively as well as more interestingly by Hawley, C. J.. in State v. Lewis, 20 Nev., 333.

Nowhere is the principle more clearly stated than in Baccigalupo's case, 74 Va., 817, as follows: "In defense to a criminal prosecution upon the ground of insanity, it is not sufficient that the evidence should be of such a character only as to produce a doubt in the minds of the jury, but the onus probandi is always

STATE V. KIMBRELL.

on the accused to prove such insanity to their satisfaction." This the defendant did not do. It was not suggested that he was not perfectly sane at the trial. The evidence showed him an active, capable business man; that 2 October he began using his employer's money; that on 19 October he drew out about $2,500, alleging that his employers would use it in building. To divert suspicion, he stated he was going to Danville, Va., and would return in two days. Thus getting a start of two days, he took an automobile to catch the northbound train at Greensboro for Washington, D. C.; at the latter place he bought a through ticket, under an assumed name, and by the quickest route, to Nagasaki, Japan; at Honolulu he doubled back (doubtless fearing extradition), and was arrested in San Francisco, still using the assumed name, which also was marked on his trunk, valise, handbag and on the band inside his hat. The day he left he wrote a letter to the main office, at Memphis, which the experts on both sides testified was written by a man who was at that time of a sound mind. There was evidence-never difficult to get-of some experts, selected and summoned by the defendant, throwing doubt upon the defendant's sanity at times, there being evidence of some wild statements at times made by the defendant; but, as there was evidence that he was a drinking man, the jury may have thought this sufficiently accounted for.

At any rate, the burden was on the defendant to show to the satisfaction of the jury that he was insane at the time of the commission of the offense. All that he did was to raise some doubt in the minds of some of the jury, who, nevertheless, found him guilty. The plea of insanity was not proven to their satisfaction. Else, under the charge of the court, they must have acquitted the defendant.

No error.

STATE v. KIMBRELL.

(Filed 24 November, 1909.)

Assault and Battery-Previous Threats-Res Gestae-Impeaching Evidence.

Previous threats are not competent as substantive evidence except in cases of homicide, and then only when self-defense is alleged or the evidence is circumstantial. Upon the trial for an assault with a deadly weapon all that is pertinent is what took place at the time or so near thereto as to be a part of the res