State v. English

164 N.C. 497

• Court: Supreme Court of North Carolina
• Decided: November 26, 1913
• Status: Published

Opinion

Walker, J.

Tbe prisoner noted several exceptions during tbe course of tbe trial, and we will now consider them in tbe order they are stated in tbe record.

Tbe first exception was taken to the ruling of the court refusing a motion for a continuance. The 'motion was heard upon affidavits, and it appears therefrom that it was made on the ground that the defendant was unable to procure the attendance of certain witnesses. A reading of the affidavits, and the circumstances attending the making of the motion and the ruling of the court thereon, show that there was no abuse of discretion. The granting of a motion for a continuance is in the discretion of the trial court. S. v. Scott, 80 N. C., 365; S. v. Pankney, 104 N. C., 840; S. v. Sultan, 142 N. C., 569; S. v. Hunter, 143 N. C., 607. The decision thereon is not reviewable, except to see whether there has been a clear abuse of discretion. S. v. Lindsey, 78 N. C., 499. It appears that the judge, with the full consent of the solicitor, proposed to postpone the trial of the case, so that the defendant could take the deposition of the absent and infirm witnesses, and further suggested, the solicitor consenting, that defendant might name the time and place for taking the deposition, and select the commissioner whom the court would appoint for the purpose, “the entire matter being left with.the defendant and his counsel, provided the testimony was taken so that the trial could proceed during the term. The defendant’s counsel declined to suggest to his Hono£ the name of the commissioner or to take the deposition of the said -witnesses, and had nothing further to say in response to his Honor’s suggestions and the agreement of the counsel for the State,” and his Honor thereupon ruled that the trial should be proceeded with, and the defendant excepted. The court exercised its discretion fairly, even liberally, and the refusal of defendant to accept the terms offered by it deprives him of any possible ground of objection. Under the circumstances, he was surely not prejudiced. The case of S. v. Blakeley, 138 N. C., 620, which he cites in support of this exception, does not sustain it, but, on the contrary, supports the action of the court, for there it is said that a ruling upon a motion for a continuance is not reviewable by this Court on appeal, “unless possibly where there has been a gross abuse of the judge’s discretion, which, was not the case” there, and is not the case here. There was no abuse at all, but a lenient regard for the rights of the defendant. S. v. Scott, 80 N. C., 365.

The second exception was taken to the ruling of the court, that certain jurors passed by the State were impartial. ■ The . record shows that those jurors stated, in answer to questions by the court, that notwithstanding they had formed an opinion about the case from the newspaper accounts, they were sure that they could assume the obligation of jurors and enter the jury box and hear the evidence from the witnesses and the charge of the court and render a verdict entirely in accordance with the law and the evidence, uninfluenced by anything that they had read or any opinion that they may have formed from what they read about the ease or otherwise. This statement of the jurors under oath was sufficient ■ to justify the ruling of the court; but it further appears that none of the jurors thus objected to were accepted by the defendant. All of them were challenged peremptorily, and when the twelve jurymen had been chosen, the defendant had the right to two more peremptory challenges which he h$d not exercised. The right of chal- . lenge is not one to accept, but to reject. It is not given for the purpose of enabling the defendant, or the State,- to pick a jury, but to secure an impartial one. The defendant got an acceptable jury, for he had two peremptory challenges left,' which he could have used if he had thought otherwise. In S. v. Bohannan, 142 N. C., 695, we said: “There is a familiar principle of law which fully meets and answers this objection. The defendant did not exhaust his peremptory challenges, but there were many left to him when the panel was completed. "When such is the case, the objection to a juror who could have been rejected peremptorily is not available. S. v. Hensley, 94 N. C., 1021; S. v. Pritchett, 106 N. C., 667; S. v. Teachey, 138 N. C., 587.” The judge found that the challenged jurors were indifferent, and his ruling in this respect will not be reviewed here. S. v. Bohannan, supra, where the cases to that date are collected. See, also, S. v. Banner, 149 N. C., 522.

Tbe prisoner next objected to the testimony of Mr. Woodall, which was admitted by the court. The exception is not specific enough, and of course should be so. Wilson v. Lumber Co., 131 N. C., 163. But the evidence was competent and relevant. We do not see why it was not competent to allow the witness to state that- he saw the defendant in his buggy looking for some one; heard the shots and immediately “ran down to see what had happened, when he found the prisoner with a pistol in his hand and the deceased wounded and being carried to the house of Horace Ragan.” He lived near-by, and knew the parties. Besides, the evidence was harmless, as these facts had already been given in evidence and were not .disputed. The evidence was also corroborative of other witnesses, and no request was made that it be confined to that particular purpose. Rule' of this Court, No. 27, in 140 N. C., at p. 495. Another conclusive answer to this assignment is that the objection was made to a mass of testimony, some of which, at least, was clearly competent. The rule is stated in S. v. Ledford, 133 N. C. at p. 722: “The objections are general, and the rule is well settled that such objections will not be entertained if the evidence consists of several distinct parts, some of which are competent and others not. In such a case the objector must specify the ground of the'objection, and if must be confined to the incompetent evidence. Unless this is done, he cannot afterwards single out and assign as error the admission of that part of the testimony which was incompetent. Barnhardt v. Smith, 86 N. C., 473; Smiley v. Pearce, 98 N. C., 185; Hammond v. Schiff, 100 N. C., 161; S. v. Stanton, 118 N. C., 1182; McRae v. Malloy, 93 N. C., 164. ’ The same rule applies to an objection to the judge’s charge, when it consists of several propositions. Bost v. Bost, 87 N. C., 477; Insurance Co. v. Sea, 21 Wall., 158. Some oí the- evidence objected to by the defendant was clearly admissible.” See, also, Carmichael v. Telephone Co., 162 N. C., 333.

The next objection is stated in the record without any ruling having been made upon which it could be, based. It appears that a witness for the defendant was asked a question on redirect examination, to which the State objected, and the witness was then directed to stand aside, with: permission to tbe defendant to recall and examine Mm later if desired, defendant’s counsel stating that they would submit to the court further authorities upon the question. The defendant’s counsel did not recall the witness nor ask permission to recall or examine him further on this point, and no ruling was made by the court. The jurisdiction of this Court is restricted to the correction of errors in the rulings of the court below; and where no ruling has been made, there can be no review here. This is self-evident. Tyson v. Tyson, 100 N. C., 360; Scroggs v. Stevenson, ibid., 354. There was no offer to show what would be the answer of the witness, and the question, on its face, does not sufficiently indicate it. "We are not, therefore, informed as to its relevancy. In re Smith’s Will, 163 N. C., 464.

This brings us to a consideration of the prayers for instruction and the charge of the court. Exceptions were taken to the refusal of certain requests for instruction to the jury and to the charge. "We may say, generally, that the charge of the court was very explicit and accurate, and clearly set forth the principles of law arising upon the evidence. It gave the defendant the full benefit of the doctrine that if the prisoner, when he committed the homicide, had become incapable by the constant use of liquor or drugs to form the intent to kill, or to plan, deliberate, or premeditate beforehand, the jury should not convict him of murder in the first degree. And the charge in respect to the effect of the liquor or drugs upon his mental condition was also correct, as the court told the jury that if, at the time of the killing, he was mentally unsound or unbalanced to such an extent that he did not know or could not understand the quality of his act, and was not able to distinguish between good and evil, he was not responsible in law, and they should acquit him. This was as far as the judge could well go and stay within the law. The instruction is sustained by S. v. Haywood, 61 N. C., 376. In that case Judge George Green charged the jury as follows: “If the prisoner, at the time he committed the homicide, was in a state to comprehend his relations to other persons, the nature of the act and its criminal character, or, in other words, if be was conscious of doing wrong at the time be committed 'the homicide, he is responsible. But if, on the contrary, the prisoner was under the visitation .of God, and could not distinguish -between good and evil, and did not know what he did, he is not guilty of any offense against the.law; for guilt arises from the mind and wicked will.” This instruction was approved by this Court on appeal, Chief Justice Pearson, for the Court, saying: “We fully approve of the charge of his Honor upon the subject of insanity. It is clear, concise, and accurate; and, as it is difficult to convey to the minds of jurors' an exact legal idea of the subject, we feel at liberty to call the attention of the other judges to this charge.’* This case was also approved in S. v. Potts, 100 N. C., 458, where the Court, by Chief Justice Smith, said: “The charge is strictly in accordance with S. v. Haywood, 61 N. C., 376. We find no authority in support of the proposition contained in the prisoner’s eighth instruction, that the prisoner’s drunken condition, while not absolving him from all guilt, might repel the malice and reduce his crime to a lower grade, though earnestly pressed in the argument on his behalf. The test of accountability for crime is the ability of the accused to distinguish right from wrong, and that in doing a criminal act he is doing wrong.' This is- settled in S. v. Haywood, supra.” In S. v. Banner, 149 N. C., 519, the present Chief Justice, for the Court, also approved it in these words: “The defense had endeavored to show by a witness that the prisoner was insane, and these questions were legitimate to show that the prisoner was attending to business and knew that it was wrong to shoot any one down. In S. v. Haywood, 61 N. C., 376, the Court approved this charge, when the defense of insanity was set up: Uf the prisoner was conscious of doing wrong at the time he committed the homicide, he is responsible.’ ” The charge of the court is also sustained by S. v. Murphy, 157 N. C., 614. In that case it was held that when the defendant- was in such a state of voluntary drunkenness at the time of the killing that his mind and reason were so completely overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill, he could not be found guilty of murder iu tbe first degree. Where-a specific intent is essential to constitute crime, tbe fact of intoxication (or, we may add, tbe use of drugs) may negative its existence, where tbe mind is so affected or weakened by it as to be incapable of forming tbe intent, or by premeditating or deliberating. Clark’s Cr. Law, p. 75. Justice Hoke said in S. v. Murphy, supra: “It is very generally understood tbat voluntary drunkenness is no legal excuse for crime, and tbe position bas been beld controlling in many causes in tbis State, and on-indictments for homicide. Tbe principle, however, is not allowed to prevail where, in addition to tbe overt act, it is required tbat a definite specific intent be established as an essential feature of tbe crime.” He further says: “It (evidence of drunkenness) bas been excluded in well considered decisions where tbe facts show tbat tbe purpose to kill was deliberately formed when sober, though it was executed when drunk, a position presented in S. v. Kale, 124 N. C., 816, and approved and recognized in Arzman v. Indiana, 123 Ind., 346, and it does not avail from tbe fact tbat an offender is, at tbe time, under tbe influence of intoxicants, unless, as hereinbefore stated, bis mind is so affected tbat be is unable to form or entertain tbe specified purpose referred to. Wharton sums up tbe matter by saying tbat £a person who commits a crime while so drunk as to be incapable of forming a deliberate and premeditated design to kill is not guilty of murder in tbe first degree.’ ” Wharton on Homicide, infra. Tbe charge of tbe judge below in Com. v. Cleary, 148 Pa., 27, approved by tbat Court, and also by us in S. v. Murphy, supra., was as follows: “If, however, you find tbat tbe intoxication of tbe prisoner was so great as to render it impossible for him to form'the willful, deliberate, and premeditated intent to .take tbe life of tbe déeeased, tbe law reduces tbe grade of tbe homicide from murder in tbe first degree to murder in tbe second degree. Tbe mere intoxication of tbe prisoner will not excuse or palliate bis offense, unless be was in such a state of intoxication as to be incapable of forming tbis deliberate and premeditated attempt. If be was, tbe grade of. offense is reduced to murder in tbe second degree.” Tbe clear exposition of Dr. Wharton (Wh. Homicide (3 Ed.), p. 811), which is as follows, we have also approved: “Intoxication, though voluntary, is to be considered by the jury in a prosecution for murder in the first degree, in which a remeditated design to cause death is essential, with reference to its effect upon the ability of the accused at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection” with other facts, an absence of malice or premeditation may appear. Drunkenness as evidence of want of premeditation or deliberation is not within the rule which excludes it as an excuse for crime. And a person who commits a crime when so drunk a"s to be incapable of forming a deliberate and premeditated design to kill is not guilty of' murder in the first degree. The influence of intoxication upon the question of the existence of premeditation, however, depends upon its degree, and its effect on the mind and passions. No inference of the absence of deliberation and premeditation arises from intoxication, as a matter of law. And intoxication cannot serve as an excuse for the offender; and it should be received with great caution, even for the purpose of reducing the crime to a lower degree.” These principles were stated and applied in S. v. Shelton, post, 513. If we apply them to the facts of this case, it is perfectly clear that the instructions, of the court were as favorable to the prisoner as the law permitted. As we have seen, he had the full benefit of the principle in regard to insanity.

We' may well doubt if there was sufficient evidence in this case — that is, such as is fit to be considered by a jury — that the prisoner was insane at the time of the homicide. His every action, and his general conduct, indicated the full possession of his faculties, unimpaired by any previous habit of intoxication or any other sort. That he had a motive is well established, and that he was influenced by his hatred of the deceased, engendered by a rivalry in the same kind of business, appears with equal certainty. He proceeded towards the execution of his purpose to slay with all the intelligence 'of a man who knew what he intended to do and how he should do it. He prepared bimself beforehand and quietly awaited tbe opportunity be was seeking to destroy bis rival. There was an absence of all excitement or impulsiveness, and in its place, a steady and studied effort to carry out bis design. But if there was evidence of an unbalanced or abnormal mind, it surely bad not reached tbe stage of insanity, such as would excuse tbe offense and not merely reduce it in degree. There was ample evidence to justify a conviction for tbe higher felony, but tbe jury took tbe benevolent view of it all, and gave him tbe benefit of tbe doubt, and tbe defendant has no reason whatever for complaint.

No error.