State v. Cloninger

Cx.ARiv, C. J.

The prisoner’s brief does not rely on the first three exceptions. The fourth exception is that his Honor narrated facts not found in the evidence, but an examination of the record shows that the Court was stating the contentions of the State, and there was evidence in their support.

Tbe prisoner’s exceptions 5 and 6 are to tbe following instruction: “You should likewise consider tbe evidence as to the character of tbe witnesses, whether that evidence was elicited from the witnesses themselves on cross-examination or otherwise, or whether it was told by witnesses who were called to testify as to the character of the other witnesses.” Read in connection with that part of the charge which directly follows it, there was no error: “Evidence-as to the character of a witness, who is not a defendant, is competent only for the purpose of enabling the jury to place the proper estimate upon the value of the testimony of the witness whose character is under consideration. . . . It is for the jury to say in such case whether the witness told the truth or not; but it is competent to introduce evidence as to the 'character of a witness in order that the jury may know the character of a witness whose testimony they are considering, and to be thereby aided in determining the weight which is to be given the testimony of such witness.”

The seventh exception is to his Honor’s charge, as follows: “Evidence as to the character of a witness who is likewise a defendant is competent for two purposes: (1) to enable the jury to place the proper estimate on the testimony 'of the defendant who is testifying as a witness; (2) as substantive evidence upon the question of guilt or innocence.” This part of the charge, when applied to the facts in the case, is correct. Where a defendant goes on the witness stand and testifies, he does not thereby put his character in issue, but only puts his testimony in issue, and 'the State may introduce evidence tending to show the bad character of the witness solely for the purpose of contradicting him. This is the rule laid down in State v. Traylor, 121 N. C., 674, and State v. Foster, 130 N. C., 676. But when a defendant introduces evidence himself to prove his good character, then that evidence is substantive evidence, and may be considered by the jury as such.

The' defendants, Will Oloninger and Charles Costner, put their characters in issue by examining witnesses to prove their good character. John Cloninger did not do this, nor ever did the State put on evidence to show his bad character, nor for the purpose of contradicting his testimony. The State merely cross-examined him, as it had a right to do, under Ecvisal 1634. The accused, by becoming a witness in his own behalf, is liable to cross-examination to impair his credit, like any other witness, and the cross-examination is not restricted to matters brought out on the direct examination. The eighth exception is a repetition of the fifth and sixth.

Exceptions 9, 10, 11 and 12 present the “transitory homicidal plea” as to Will Cloninger. The presumption is that he was sane. The burden was on him to show the contrary. State v. Potts, 100 N. C., 465. Will Cloningpr testified: “I guess I was unconscious. ... I saw ilauney coming towards me, he said he was going to kill me, and I thought he was. I then struck him.” His Honor charged: “If the jDerson at the time of the homicidal act was in a state of mind to comprehend his relation to others, or, knowing the criminal character of the act, was conscious that he Avas doing Avrong, he Avas responsible; otherwise he Avas not, and such Avonld be your verdict.” This charge íoIIoavs State v. Haywood, 61 N. C., 376, Avliich has been approved since on this point. State v. Potts, 100 N. C., 465; State v. Davis, 109 N. C., 784; State v. Branner, ante, 559, and in other eases.

Exceptions 13, 15 and 16. John Cloninger and Charles Costner Avere aiders and abettors. There is abundant evidence to sustain a Sonviction AAdiere the bystander is a friend of the perpetrator, and knoAvs that his presence Avill be regarded by the perpetrator as an encouragement and protection. Presence alone may be regarded as encouraging. State v. Jarrell, 141 N. C., 725. To like effect is State v. Finley and Jimmerson, 118 N. C., 1161 to 1176, Avhere the Court sustained a conviction of nmrder in the second degree against the tAAm defendants when it appeared that they were “deviling” the deceased and teasing ¡ him, and that-one of .them struck him and killed him. The Court in that case .held that the other was just as guilty, inasmuch as “deviling” and “teasing” was an unlawful act.

Here the prisoners are more guilty, for they were making an assault on the deceased, driving him backwards into a pea field. lie repeatedly warned them to stand back and they, with oaths, kept pressing on him. Charles Costner not only lent his presence, but was the man that was endeavoring to take the bat away from him, cursing and telling deceased to give up the bat, and finally jerking the bat out of deceased’s hands. As soon as he jerked the bat out of deceased’s hands, Will Cloninger took the bat and hit him. ,

Exceptions 14 and 11 have been considered in.the other exceptions. Exception 18 is abandoned, not being in the brief.

This was an important trial. It was a trial of a crowd of disorderly rioters at a baseball game. The painstaking Judge, as appears from the charge, very jealously guarded the rights of the prisoners, giving them many instructions which they asked and some to which they were not entitled. They have had every benefit and advantage of a fair trial.

Indeed, the prisoners have cause to congratulate themselves that they were not tried before a sterner Judge, for Charles Costner, the man who disarmed deceased at the time he was in need of a weapon, only received a sentence of one year’s imprisonment; John Cloninger, 'the man who provoked the difficulty by hitting at deceased with a mandolin, tho man who held deceased while his brother struck the fatal blow, and who kicked the deceased after he had been stricken, only received two years’ imprisonment; Will Cloninger, the prisoner, who entered the difficulty voluntarily and thereupon became the principal actor, and who finally struck the fatal blow by leaning oyer bis brother’s shoulder, hitting deceased, an unarmed man, who was then in the grip of two other men, in the head with a baseball bat, thereby producing death, only received three years’ imprisonment.

No error.