Craven County NcArchives Court.....Hardy Jones, State V. 1873
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Connie Ardrey n/a December 15, 2009, 6:40 pm

Source: North Carolina Reports June Term
Written: 1873

The State v. Hardy Jones

The Supreme Court has no power to entertain a petition to rehear a criminal 
action. It never passes judgment in such cases, but only gives its opinion and 
orders it to be certified to the Court below to be carried into effect by that 
Court.

A point which the bill of exceptions or case stated shows was not taken in the 
Court below cannot be taken in this Court.

This is a Petition to rehear the case of an indictment for murder which was 
before the Supreme Court at the last term upon an appeal, when an opinion was 
given that there was no error, and it was ordered that the opinion should be 
certified to the Superior Court of the county of Craven from which the appeal 
was taken.

After an argument by the Attorney General for the State and Haughton for the 
prisoner, the following opinion of the Court was given:

[NC Supreme Court]
Reade, J. The defendant was tried for murder and convicted, and appealed to 
this Court. At the last term of this Court we decided that there was no error, 
and directed that our opinion be certified to the Court below, that that Court 
might proceed to judgment. At this term of the Court the defendant files a 
petition to have the case reheard in this Court, upon the ground that his 
counsel was not present when the case was heard in this Court, and that on 
that account the attention of this Court was not called to a defense which 
would have availed him.

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 actions the practice has been common, but in 
criminal cases never to our knowledge. In the former cases this Court makes 
decrees and passes judgments, 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 below, and there out jurisdiction ends.

We should regret this if it appeared that any injustice had been done the 
defendant, either by reason of the fault of his counsel or the oversight of 
this Court; but in considering the defense set out in his petition in 
connection with the record in the case, it is apparent that it could not have 
availed him if it had been made in this Court upon the hearing.

The defendant was arrested not by a regular officer, but by one deputized for 
the purpose. And upon the trial below his Honor charged the jury that in order 
to make the killing of the deputy murder, it must appear that the defendant 
knew that he was authorized to arrest him, and that unless they were satisfied 
that the defendant knew that fact, they must acquit him or murder. This was 
all right. But the defendant in his petition says that there was no evidence 
that he did know it, and therefore it was error in his Honor to leave it to 
the jury. Suppose that to be so for the sake of the argument, the proper 
course was for the defendant to move for a new trial upon that ground, and 
then his Honor would have stated what the evidence was, and we could have 
reviewed him.

But no such objection was taken below, and therefore could not have been taken 
here, unless it had appeared in the record. It is true that the record does 
not state the evidence as to the knowledge of the defendant that the officer 
was deputized, nor does it state that there was any evidence upon that point. 
But then it is not usual to state all the evidence, but only so much as is 
necessary to present the points made below. And we infer that there was 
evidence of that fact, because his Honor distinctly calls the attention to the 
jury to it as one thing about which they must be satisfied; and this he would 
scarcely have done if there had been no evidence; or if it had escaped his 
Honor's attention, it would not have escaped the attention of his learned 
counsel. But no such point was taken below, and no such point was taken upon 
the hearing in this Court, although the defendant's counsel was attendant upon 
the Court at that term, and is put down in the report as appearing in the 
cause, and our recollection is that he did appear, and did argue the case in 
person, when the case was first called, when there was a certiorari ordered. 
Upon the return of the certiorari we suppose the counsel was absent, but a 
brief would have presented the point. But we repeat that the point, if made 
here and not made below, would not have availed him.

Per Curiam
Petition dismissed with cost

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