
    THE STATE v. THOMAS DULA.
    Where there is any evidence of an agreement between two or more to compass the death of a third person, the decision of the court below that such evidence is sufficient to establish the agreement, (preliminary to the admission of the acts, &c., of one of such persons as evidence against the other) cannot be reviewed in the Supreme Court.
    Although in investigating the preliminary question as to the agreement, evidence of the naked declarations of one of the parties is not competent: yet if such declarations make part of the act charged in the indictment, it is otherwise.
    In order to support an exception to the exclusion of certain testimony, such testimony must appear to have been relevant.
    What one says in via, as to the place to which he is going, is competent evidence to establish the truth of what he says.
    It is no ground for an arrest of judgment that the name of the State is omitted in the body of the indictment; or that the memorandum of the pleas of two defendants is prefaced by the word “ saith.”
    
      (State v. Dula, ante 211, and State v. Lane, 4 Ire. 113, cited and approved.)
    Murder, tried at a Court of Oyer and Terminer for Iredell, upon the third Monday of January 1868, before Shipp, J.
    
    The prisoner was charged as principal in the murder of one Laura Foster, in Wilkes County, in January 1866; one Ann Melton being charged in the same indictment as accessory before the fact, but not being upon trial, in consequence of an affidavit made by the prisoner.
    The State relied upon circumstantial testimony, and upon the acts and declarations of Ann Melton in furtherance of an alleged agreement between her and the prisoner to commit the homicide. To establish the agreement evidence was given to the court that the deceased was at home, at her father’s, on Thursday night the 24th of January, but on the next morning was gone, as was also a mare that had been tied in the yard. Early on Friday she was seen upon the mare, about a mile from home, going in the direction of “ the Bates place.” She was not seen alive after that, but subsequently her body was found rudely buried in a laurel thicket near that place, and there was a wound upon her left side piercing the cavity of the body. There was evidence that the prisoner was in the habit of criminal intercourse with both the deceased and Ann Melton; that some short while before he had contracted a disease from the deceased and had communicated it to Ann Melton; that he had threatened to “put through” whoever had given it to him; that he had been with the deceased at her home on the Sunday and Monday before she disappeared, and there had private conversations with her; that on Thursday and Friday he had had private interviews with Ann Melton at her home, and on a ridge near her home; that he had sent for liquor in a canteen when at her house on Thursday, which was brought there in his absence: whereupon, Ann Melton had sent for him by a little girl, in a secret and singular manner, to come and get it, but her messenger did not find him; that afterwards he had come to her mother’s house, and after a private conversation between them, he and Ann went off in opposite directions; that during the same day he had been at Ann Melton’s house, saying, he had met her upon a ridge near by, and that she had told him where to get the canteen and some alum; that he had borrowed a mattock during the day from her mother and was seen with it near “the Bates place;” that on Friday morning he was seen travelling in the direction of “ the Bates place,” by a road which ran parallel with that by which Laura Foster was seen going: that Ann Melton, after leaving her mother’s, did not return to her own house until Friday morning, when her shoes and dress were wet, and she retired to bed remaining there most of the day; after she had gone to bed the prisoner came there, leaned over her, and had a whispered conversation with her.
    The hypothesis of the State was that the grave was dug on Thursday or Thursday night, and the deceased killed on Friday or Friday night; and that the motive was the communication of the disease.
    On motion by the State, the court held that the above circumstances were sufficient to authorize the introduction ■of Ann Melton’s acts and declarations in furtherance of the common design; cautioning the jury at the same time that this decision was to have no weight with them as to the prisoner’s guilt or innocence.
    To this decision the prisoner excepted; as he did specially to the Court’s hearing evidence, whilst taking information upon that point, as to the message sent by the little girl.
    Evidence was admitted that Laura Foster had said to a witness, whilst riding in the direction of the Bates’ place, that she was going to that place. To this the prisoner had excepted, and at a subsequent stage of the trial the State agreed that it should not be considered as in evidence; and the court thereupon, in charging the jury, told them not to regard it. The prisoner complained of the admission as calculated to prejudice him'before the jury.
    One Eliza Anderson, (a white woman,) a witness for the State, was asked upon cross examination, if she was related to John Anderson, (a man of color,) and the object of this question was stated to be, her disparagement or discredit. Upon objection the question was ruled out.
    Yerdict, guilty; Rule for a New Trial discharged; Judgment, and Appeal.
    
      Vance for the prisoner.
    
      Attorney General, Boyden and Glement, contra.
    
   Pearson, C. J.

The case, as it now comes up, presents but few points, and no one of them calls for much discussion.

1st. On the argument, the point made upon the evidence offered to the court as preliminary to the admissibility of the acts and declarations of Ann Melton in evidence to the jury against the prisoner, was treated as if the question before this court was in regard to the sufficiency of the evidence to establish the fact of an agreement between Ann Melton and the prisoner to compass the death of Laura Foster; whereas, this court is confined to the question — was there any evidence tending to establish the fact? If so, his Plonor’s decision, as to its sufficiency, was upon a question of fact, which we cannot review. Looking at it in this point of view, it must be conceded that the point is against the prisoner.

2d. “ His Plonor erred in receiving as evidence to himself, the declaration of Ann Melton, to wit: the message and instructions given by her to the little girl sent by her to the prisoner.” It does not appear on the record that this evidence was objected to as inadmissible. But, suppose it was objected to, we are of opinion that it was admissible on the ground that, although nalced declarations of one are not admissible against the other, to show an agency or an agreement, yet this was not a naked declaration, like an admission or confession, but was a part of the act and indeed, the most important part of it.

3d. “The words used by Laura Foster ought not to have been received as evidence.” We think that the evidence was admissible as a part of the act. It was so considered by us when the case was up before. Vide ante 211.

4th. “ The question put to the witness, Eliza Anderson, ought not to have been ruled out.” There is not enough set out in the statement of the case to show the relevancy of this question, and we are confined to what appears in the statement of the case, treating it, as a bill of exceptions on the part of the prisoner.

Neither of the two grounds taken in support of the motion to arrest the judgment are tenable. State v. Lane, 4 Ire. 113, is a conclusive answer to one, and the other is only-objectionable as violating a rule of grammar. This does not vitiate a legal proceeding when the sense and meaning is clear. Indeed, as the plea of “ not guilty ” is several and not joint, it would seem to be most proper to use the verb in the singular number and to set out in the record that each person upon the arraignment saith “ he is not guilty,” “ she is not guilty,” instead of putting it in the form of a joint plea; but the authorities support the entry in either way.

There is no error. This opinion will be certified to the end, &c.

Per Curiam. There is no error.  