"Look on the prisoner, ye that be sworn, what say ye? Is he guilty or not guilty of the felony of murder whereof he stands indicted? When G. W., one of the jurors aforesaid, delivered the verdict guilty; when the verdict was recorded in the following words, `Find the defendant Jesse Upton guilty in manner and form as charged in the bill of indictment.' "
In the court below the counsel for the prisoner moved in arrest of judgment, contending that the verdict was defective. This motion was overruled by the presiding judge. The (514) prisoner then prayed the benefit of the clergy; and his counsel insisted that the verdict was only equivalent to a conviction of manslaughter. The prayer for clergy was disallowed, and judgment of death awarded, whereupon the prisoner appealed.
In this Court several other reasons were assigned in arrest of judgment, but the Chief Justice, in his opinion, has given so *Page 347 full a statement of them, and of those parts of the record upon which they were founded, that any addition to it would be superfluous. The transcripts of the record in this case, coming from three several Superior Courts, are multifarious, and can only be understood by an attentive examination. It will, therefore, materially facilitate the decision of the case, and enable us duly to estimate the objections made by the prisoner's counsel, to exhibit a concise history of the cause from its commencement, as extracted from the several records sent up.
At September, 1825, the bill of indictment purports to have been found a true bill by a grand jury of Randolph County, in which the offense is laid to have been committed. This copy of the bill is free from the objection made to it, with respect to the Christian name of the deceased, for it is spelt "Anne" throughout. It is also free from the objection that it does not appear, except inferentially, upon what part of the person of the deceased the strokes were given; for it is directly charged that the mortal wounds were given upon the sides of the head of the deceased. But the defect of the transcript consists in not setting forth the name of the judge, or of the grand jurors — I should rather say, it omits to state them; for whether it is erroneous on that account I do not give any opinion, (515) and the sequel will show it to be unnecessary.
The cause was continued until Fall Term, 1826, when the prisoner was arraigned, and pleaded not guilty, and upon his affidavit the case was removed to Davidson Superior Court. Nor does the transcript of the term when the removal was ordered state the presence of any judge.
The cause being thus in Davidson, the prisoner was tried and convicted at the Fall Term of that court, in 1826, upon which he moved for a new trial and in arrest of judgment, which motions were not disposed of at that term. But the prosecuting officer having suggested a diminution of the record, a certiorari was directed to Randolph to send up a complete one.
At the following term of Davidson Superior Court a transcript was sent up from Randolph, which stated the name of the judge and of the grand jurors. In one repetition of the name of the deceased in the copy of the indictment it is spelt Anny. By this transcript it also appears that the prisoner was arraigned, and pleaded as it is first above set forth. But it *Page 348 appearing to that court still defective, a subpoena duces tecum was ordered to the clerk of Randolph to produce the original record, which was done at the same term, and the deputy clerk of Randolph permitted to amend the transcripts before sent by the originals then produced. In the indictment copied into this transcript there is one misspelling of the name Anny. The reasons in arrest of judgment were then overruled, and the prisoner appealed to this Court, where a new trial was awarded. At October Term, 1827, of Davidson the cause was continued on the prisoner's affidavit.
At Spring Term, 1828, it was removed to Guilford Superior Court, on the prisoner's affidavit, where, during the same circuit, it was tried and the prisoner convicted, who then moved (516) in arrest of judgment, which being overruled, he appealed to this Court.
Several objections have been here taken in arrest of judgment, and it is fit, in a case of so much importance, that they should be duly considered.
The first relates to the manner of recording the verdict. It appears from the record that the foreman was called upon to say whether the prisoner was guilty or not guilty of the felony and murder whereof he stood indicted, and he answered guilty. This is the established form, and is responsive to the question asked. The entry of the verdict is a formal act of the clerk, and it is here, substantially and in effect, that the jury find the prisoner guilty of the felony of murder whereof he stands indicted; for with that he is charged in the indictment. They must necessarily find him guilty of the felony and murder, as charged in the indictment, when they find him guilty in manner and form as charged in the bill. The three first exceptions relating to this point are clearly untenable.
The fourth exception denies the jurisdiction of Guilford Superior Court. But the transcript from Davidson County shows that an affidavit for removal was filed by the prisoner, that there was a judge present, and that he made an order for the removal. It is difficult to conceive in what manner the court of Guilford could be more completely possessed of jurisdiction, according to the act of Assembly.
The arraignment is distinctly stated in the transcript both before and after the amendment, and each time it is stated to have taken place at September, 1826.
Other objections are: The omission of the conjunction that, and the court's having permitted the deputy clerk to produce the original record and amend the transcript by it. As to the *Page 349 first, the omission of the word in no respect alters the sense. It is designed as a note of connection; but whether we say, that Jesse Upton is presented, or, Jesse Upton is (517) presented, the same idea is conveyed to the mind.
The deputy clerk is an officer recognized by the law, acting under oath, and competent to do any act which his principal, were he present, might do; and it was certainly proper in the court, when they saw that the transcript was imperfect in omitting the name of the judge and the name of the grand jurors, to have it amended by the original; for the indictment could not have been found and returned unless there had been a judge and a grand jury. It would be a serious obstruction to the administration of justice if transcripts sent from one court to another, sometimes loosely made up, could not be amended by the original record. It is every day's practice to do so, and it is consonant with principle.
The misspelling of the name is immaterial, since it appears throughout the indictment to be the same person; the Anny murdered is "the said Anne" upon whom the felonious assault was made, and who was hit and struck. The name with the final e is as often called Anny as Ann; and misspelling in a name, where the sound is not altered, is unimportant. Upon the whole, the conviction appears to be right, and the Superior Court must award the sentence of the law.
PER CURIAM. Judgment affirmed.
Cited: S. v. Patterson, 24 N.C. 360; S. v. Barfield, 30 N.C. 353; S.v. Henderson, 68 N.C. 349; S. v. Buckley, 72 N.C. 361; S. v. Underwood,77 N.C. 504.
(518)