The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-12-23
MURDER IN THE FIRST OR
SECOND DEGREE?
SLAYER or CAPTAIN BARNES, OF WILSON
A Sheriff Can Not Co tract to Have His Taxes
Collected by Others For a Certain Per Cent
Of Collections. Court Adjoums
to ebrUary Term.


trial for the killing of Capt Calvin
Barnes, near Wilson, on August 10Th,
1889. Jefferson, it will be recalled, was
brought here to prevent his being lynch
ed by citizens of Wilson county He
was tried first in the Eastern District
Criminal court and was convicted. His
counsel appealed to the Superior court
where Judge Hoke ordered a new triad,
because Of the admission of the dying
declaration of Capt Barnes that he be-
liered he had been shot by Jefferson.
From Judge Hoke's ruling the solicitor
appealed to the Supreme court, which
sustains Judge Hoke.
The court says: CAT most, the evil
dence Was but the opinion of the de-
ceased that the prisoner shot him, that
opinion being founded ON what had oc-
CURED between the deceased and the
prisoner on the morning of the day on
which he was MORALLY wounded, for the
deceased did not see the person who
shot him because of the darkness of the
hour. Dying declarations must
be confined to the facts connected with
the act Of killing, facts attending the act
and forming part of the res gestae. State
vs.. Shelton II n. c. $50.
The court thinks that there was plen-
ty Of competent evidence going to show
that Jefferson was guilty, but adds that
On ii apart from the incompetent evidence
the jury might not have convicted.
1t also takes a slap at lynching, say
ing: Upon reading the record in this
case it is probable that the prisoners
life was in danger at the hands of some
layless persons at and about the time
of the homicide. Such a spirit is greatly
to be deprecated and deplorld, but sit
ting, as we do. as a court of last resort
we can not, if it should be eX-
pected Of us by any class of our citizen
ship. allow the life of any one to be
taken under the form of law upon evil
dence in part wholly incompetent"
Apart from the evidence, however the
court says that Jefferson is entitled to a
new trial because the jury brought in a
verdict that he was guilty of the felony
and murder whereof he stands indicted
in manner and form as charged IN the
rill of Indictment" whereas the law
says: The jury before whom the of
fender is tried shall determine in their
verdict whether the crime is murder in
the first or second degree" The bill of
Indictment covered murder in the first
and second degree, and the verdict Of
the jury failing to say in which degree
the prisoner was found guilty was fatal
The same point was decided in State
Us. Tuesdale at this term of court.
CANSLER VS.. PENLAND.
a decision that establishes new pre-
oedent for this State was rendered yes
terday in the case of Canister VS.. Pen
land from Macon county. Cansler, who
was sheriff of the county, contracted
with Penland to collect the taxes on a
of 21h per cent. A difficulty
arose over an account of $500. Cans
ler's attorneys, Simmons Pou & Ward,
set up the claim that the contract was
contrary to the statute forbidding a
sheriff to farm out" the collection of,
taxes in his county The court SO holds
declaring that it is contrary to public
policy. This establishes the precedent
that Il sheriff can not have his taxes col
lected on commission by another.
The court after handing down the
opinions below adjourned to meet on the
first Monday in February.
OPINIONS HANDED DOWN.
Opinions were handed down as fol-
lows:
State VS.. Mallett, from Edgecombe;
motion of defendant denied and former
opinion of the court affirmed.
Robson VS.. Mcdowell, from Bladen;
motions of both ~plaintiff and defendant
refused.
Garrett VS.. Reeves, from Haywood;
new trial.
Mincy vs. Foster, from Macon; affirm
ed.
Cansler VS.. Penland, from Macon; re-
yersed.
Bank VS.. Warlick, from lincoln;
Asbury VS.. Electric Railway Co, from
no error.
Wilson VS.. Wilson, from Rutherford;
Pants Co. vs.. Smith, from Polk; re-
Adams vs. Railroad, from Castor; re-
versed.
State VS.. Bost, from MeckIenburg; re-
yersed.
Butner VS.. Blevins, from Surry;
affirmed.
White VS.. Fox, from Alexander;
affirmed.
State vs.. Brown, from Iredeli; re-
versed.
Waters VS.. Waters, from Sampson;
new trial.
Crews VS. Cantwell, from Wilson; new
triad.
Daniel vs. Crowel, from Wilson; re-
versed.
Aston vs. Massenburg, from Franklin,
error.
White VS.. Trip, from Pitt; affirmed.
King VS.. Stokes, from Pitt; reversed.
State VS.. Jefferson, from Wilson; new
trial
Morris VS.. House, from McDowell; re-
yersed.
Bernard VS.. Hewlett, from New Han
over. per curiam; reversed
High VS.. Pannill, from Vance, per
curiam; affirmed.