This is an indictment against the prisoners Hill, Williams and Walker, for the murder of Samuel Presson. The first count charges that Hill fired the gun, and that the other two were present aiding and abetting; the second count charges that Williams fired the gun, Hill and Walker being present ading [aiding] and abetting in the homicide.
1. After the evidence was given, the counsel of Hill asked the Court to instruct the jury, that unless they found from the evidence that the gun when fired, was in the hands of Hill or Williams, they must find Hill not guilty. This his Honor refused, and in that there is no error; for suppose the gun was in the hands of neither Hill or Williams, but was in the hands of the other defendant, Walker. In such case all the authorities agree that would be sufficient to warrant the conviction of Hill and Williams, if they were present aiding and abetting. 2 Hale's Pl. Cr. 292, 1 H. P. C., 437, 7 Co. Rep., 67a. 1 Bishop Cr. Procedure, 546, Arch. 6, State v. Cockman, Winst. 95. How it would have been if some person, not named in the indictment, had fired the fatal shot, we are not called upon to decide, for there is here no allegation or evidence that such was the case. *Page 350
2-3. The second and third instructions asked for, were that there was no evidence that the gun was in the hands of Hill when fired, and that if the dying declarations of the deceased were to be believed, the gun, when fired, was not in the hands of Hill. These instructions were properly refused, because it was not at all material whether the gun was fired by Hill or not. His Honor in substance and effect charged the jury, that if they were satisfied that the defendants were all, or any of them, engaged in the homicide, it was not material which of them fired the gun. We can see no error in this charge as applied to the very meagre statement of the evidence set forth in the case.
4. When the case came on the prisoner, Hill, filed an affidavit setting forth that he could not have a fair trial in the county, and asked the Court to remove the action to another county for trial, which motion his Honor disallowed. Was this error? It is not denied that the affidavit states the causes for removal as fully as is required by the statute, Rev. Code, ch. 31, sec. 115; and the only question is, was the removal a matter of discretion for the Judge. The first Act upon the subject was passed in 1806, which declared that a removal shall take place when a party shall state on oath "that there are probable grounds to believe that justice cannot be obtained in the county," c. Under this Act some of the Judges had scruples and believed they had no power to deny the application for removal, when such an affidavit was made. It was to remove these doubts that the Act of 1808 was passed, which provided that no order of removal shall be made "unless on oath made, in which the facts wherever the deponent founds his belief that justice cannot be obtained in the county where the suit is pending, shall be set forth that the Judge may decide upon such facts whether the belief is well founded." This latter Act, though it solved some doubts, raised others, for in the State v.Twitty, 2 Hawks, 248, the affidavit for removal on the part of the State set forth that "the deponent believes the State cannot have a fair and impartial trial in the county of *Page 351 Burke;" whereupon the case was moved to the county of Lincoln, and the party tried there and convicted. On appeal to this Court, the judgment was arrested upon the ground that the affidavit did not state the facts on which the deponent founded his belief, as was required by the Act of 1808, and so the Court of Lincoln had no jurisdiction. But the Court there say, that if the facts had been set forth, the Judge of the Superior Court and he alone must have decided on them. In the subsequent case of the State v.Seaborn, 4 Dev. 305, on the affidavit of the prisoner, his case was removed from Wake to Cumberland county, where he was tried and convicted. In this Court it was moved in arrest of judgment on the ground that his case was improperly moved from Wake, the affidavit not stating the belief of the prisoner that he could not obtain justice in Wake county. The judgment was not arrested, but the authority of Twitty's case was doubted. For if one Judge removes a case to another county on an affidavit which he deems sufficient, and the Judge of the other county refuses to try and disclaims the jurisdiction because he thinks the affidavit insufficient in law, or if he thinks the affidavit sufficient and exercises jurisdiction, but this Court, on appeal, arrests judgment because of the insufficiency of the affidavit, as was done in Twitty's case, it is at once seen what confusion and uncertainty would involve the administration of justice. Therefore in Seaborn's case it is said by the Court that "it seems indispensable that there should be a plain and certain method for the Court to which a cause is removed, to determine whether it is bound to try it, that is, has the power to do so, about which, if it stands on the force of the order, the minds of any two Judges may come to different conclusions of fact." The rule there declared is, that this Court will look into the affidavit to see whether the facts on which the applicant founds his belief are stated; if the facts are stated, this Court can go no further, for the Judge to whom the application is made, and he alone, decides on their sufficiency. It follows, according to these cases, that if *Page 352 no facts are stated in the affidavit, the Court has no power to remove, but if the facts are stated, the Court is to decide on their sufficiency, and, in its discretion, grant or refuse the application. But this rule is not altogether satisfactory as furnishing an unerring guide to the Courts, for one Judge might differ from another as to whether the facts are stated or sufficiently stated, and so take or refuse to take jurisdiction of a case removed to his circuit for trial. It cannot be held, for instance, that a removal without affidavit would confer jurisdiction upon the Court of another county; a trial in the latter upon such a removal would be a nullity according to the cases we have cited.
Nor, on the other hand, ought it to be held that a mere defective statement of the causes for removal in the affidavit, makes the removal void and as conferring no jurisdiction to try. It might, however, be inferred from Seaborn's case, that such defective statement would be fatal, for the decision in that case is put upon the express ground, "that the affidavit comes up, in this respect, to the statutes." Doubtless, the most infallible rule would be to make the order of removal conclusive in all Courts, but this cannot be done without violating the plain words of the act and the decisions of this Court. The act authorizing the removal creates a new and special jurisdiction, and before that jurisdiction can be required, the conditions precedent must be complied with, and to that extent the power of removal is not a matter of discretion. But where the facts whereon the belief is founded, are set forth in the affidavit, so that, in the language of the act, "the Judge may decide upon such facts, whether the belief is well grounded," then the Judge acquires complete jurisdiction and his decision is final, and not the subject of review. It was so held by this Court in the later cases of the State v. Duncan, 6 Ired. 98, and in State Hildreth, 9 Ired., 429, and to that extent the question may be considered at rest.
In the case before us, the facts are sufficiently stated, and therefore the action of the Judge was final, and would have *Page 353 been so, had he ordered the removal as prayed for, instead of denying the motion. It will be observed that the statute does not impose a duty, but confers a discretion, and therefore it is always competent for the Court to refuse to remove. In the exercise of the power of removal, this Court has inculcated a spirit of great liberality in favor of life, and that it ought to be a very clear case of demerit in the application, to justify the Judge in refusing to allow at least the first removal. The administration of criminal justice must not only be impartial in fact, but the subjects of it should have the best reason to believe they have had a fair trial. We have no reason to believe that the law has not been fairly administered in this case.
5. The question of severance in the trial is a matter of discretion with the Judge, and from his decision there is no appeal. State v. Collins andBlalock, 70 N.C. 241; Hildreth's case, 9, Ired., 429.
There is no error in the record.
PER CURIAM. Judgment affirmed.