The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-08-10

L
and the reasons and authorities in
| fuencing the court.
| However, / have no hesitancy in say
/ ing that in my opinion this is a proper
! case to be reheard but / feel great hest
tation in ordering it to be docketed in
view of the decision of this court in
State vs. Jones SO N. c. 16. That case
| is directly in point, and expressly holds
that The Supreme court has no power
to entertain petition to rehear crimi-
nal action 1t is but just to counsel
as we'll as myself to say that the decis-
ion does not meet my approval, in spite
of my respect and admiration for that
great court that delivered it. In fact,
| it scarcely seemed to satisfy the court
itself as the learned justice writing the
opinion, after deciding this vital point
against the petitioner, proceeds to dis
cuss the points raised. in the petition as
fully as If the petition had been al
lowed.
THAT case was decided upon no pre-
cedcnts whatever, as there were admit
tedly none then, and / am able to find
none other since. 1t is true Jones case
is cited in State vs. Starnes, 81 n. g.
913, ISL: and in State VS.. Rowe, 90 N. c.
629, $50; but these latter cases relate
exclusively to motions for new trial upon
newly discovered evidence, end have no
| apparent bearing on the question of re-
hearing. The reasons given by the
court are as follows:
" Neither the learned counsel for the
prisoner nor the Attorney General has
been able to cite any authority showing
that we have the power to rehear the
case. In equity cases and in civil ac-
tons the practice has been common,
but in criminal cases never to our
knowledge. In the former cases this
court makes DEGREES and passes judg-
ments, which may be reviewed. But in
criminal cases we do not pass judgment
Such cases are sent up for our opinion
only, which we certify to the court be-
low, and there our jurisdiction ends
Whatever force these reasons might
then have had, they have none now to my
mind. Thi scourt constantly grants re-
hearing in civil actions where it passes
no Judgment whatever and makes no
DEGREES. Rules So and So, providing for
rehearing, made no distinction between
civil and criminal cases, and / see none.
IF the title to a chicken were in
volved, l could grant a rehearing; but
as a human life is at stake, / am utter
ly powerless. To my mind such a dis
tinction finds no just foundation in law
in public policy or in humanity. The
rights of property can never be more
sacred than the security of the person,
as they have no Independent existence
but exist only in relation to the owner.
THE guilt or innocence of the pris-
oner is not for me to decide, nor can
properly consider the facts that the
judge that tried the prisoner has grave
doubts of his guilt, that the solicitor
who prosecuted him does not believe
that he is guilty, and that the jury
that convicted him rendered verdict
only after q distinct understanding
among themselves and with the court
that it should be coupled with a recon-
mendatior to mercy. These facts, how
ever strong and significant, appeal only
to Executive clemency and not to judi
cial action.
However much justice may dissent
from the decisions of the court. and
however full his right of dissent when
sitting with the court, he is bound by
them when acting in his individual ca
pacity. But docketing a case is not
overruling an opinion that may be in
volved. 1t is simply bringing the mat
ter before tie court for such action as
it may see fit to take. In no other way
whatever can it be brought before the
court. Even if the court were in favor
of rehearing, it could not act under it's
rules, unless some individual Judge took
the responsibility CT ordering the case
to be dcCketed.
Feeling as I do, I think the court
should have opportunity to pass upon
the question, which can never be pre-
sented more clearly or more forcibly.
II am somewhat influenced in this
course by the fact that the Governor
frankly states that he will reprieve the
prisoner if l order his petition to be
docketed hut not otherwise: and by the
further fact that eminent members Of
the bar think that criminal cases can
be reheard, view in which / under
stand his EXcellency to fully concur.
Unless his case is docketed, the pc
titioner Will be hung next Monday, and
this court would then be poweriess to
correct any error that may exist. no
matter how great or manifest.
1.-The petitioner has been convicted of
what is properly regarded as the high
est crime known to our law, and il
guilty should be punished But he is
entitled to a fair trial, and if innocent,
his execution would inflict wrong
which eternity alone can repair. I'M
der such circumstances l feel it my
| duty to act, no matter how great may
be my reluctance of the responsibility it
involves. The clerk will docket this
case and file this opinion with the pc
tition. He will also issue the proper
notice, including one to the Governor.
r. M. DOUGLAS,
Associate Justice.
This st hday of August, 1901
| Clark's Code says the uniform ruling