State v. Hudson

218 N.C. 219

• Court: Supreme Court of North Carolina
• Decided: October 9, 1940
• Status: Published

Opinion

ClaeKsoN, J.

The law in reference to homicide is as follows: N. C. Code, 1939 (Michie), sec. 4200: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punishable with death. All other kinds of murder shall be deemed murder in the second degree and shall be punished with imprisonment of not less than two nor more than thirty years in the State prison.”

Sec. 4614 is as follows : “In indictments for murder and manslaughter, it is not necessary to allege matter not required to be proved on the trial; but in the body of the indictment, after naming the person accused, and the county of his residence, the date of the offense, the averment ‘with force and arms,’ and the county of the alleged commission of the offense, as is now usual, it is sufficient in describing murder to allege tbat tbe accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid; and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter as the case may be.”

The bill of indictment is as follows: “The Jurors for the State upon their oath present, That Dollie Lee Hudson, late of the County of Northampton, on the 15th day of November, in the year of our Lord one thousand nine hundred and thirty-nine, with force and arms, at and in the County aforesaid, did unlawfully, willfully and feloniously, with premeditation and deliberation and of his malice aforethought kill and murder one Hampton W. Elliott, against the form of the statute in such ease made and provided and against the peace and dignity of the State.”

At the close of the State’s evidence and at the close of all the evidence, the defendant in the court below made motions for judgment of nonsuit. N. 0. Code, 1939 (Michie), sec. 4643. The court below overruled these motions, and in this we can see no error.

The evidence succinctly: The dead man, Hampton ~W. Elliott, was the landlord and defendant the tenant. Their tobacco was sold in Rocky Mount for $81.90 and check made to both of them, but cashed by Elliott. There was evidence to the effect that there was a dispute between them. The defendant testified, in part: “Mr. Elliott gave me a little, small piece of paper and handed it to me and said, ‘There is your memorandum’ and I did not take it. I said, ‘That is not fair, you had the check and have not let me see the bill,’ and he said, ‘I want to keep it in case I want to raise some tobacco next year.’ I said, ‘You could let me have it and let my wife and sister see it, and know whether we are in debt or out of debt,’ and he said, ‘You are out of debt.’ ”

It was further in evidence: “He (defendant) said when he was going-out of the door, and near about to the door, ‘I am going to kill me a man on the way home or home one and get in the woods.’ ”

The chief of police of Rich Square testified, in part: “I did not threaten him in any manner or offer him any reward or hope of reward. . . . He said after he shot him he went in the house, changed clothes and left, took the car and went to Petersburg; said he parked the car on a log camp or sawmill lot, and locked it and left the keys on the running-board.”

The sheriff testified, in part: “Nobody offered him any reward or threatened him in any way, or made him any inducement to make any statement. Mr. Tyler told Dollie Lee be better keep bis mouth shut and pray. Dollie Lee made the statement in Mr. Outland’s presence that be beat up Mr. Elliott, ran in the bouse and got the gun and came out and shot him, and never touched him after be shot him.”

The cause of Elliott’s death was a “shotgun wound in bis neck.” There was evidence that Elliott and defendant drove in defendant’s yard in the car and when defendant got to the bouse be went in the bouse and went to the bureau and got bis gun, a single barrel gun. Defendant got some shells and went out of the door and shortly afterwards a gun shot was beard and Elliott was seen lying on the ground. Before defendant went into the bouse to get the gun “bis voice sounded like be was angry or mad.” In detail, the evidence, both direct and circumstantial, pointed to defendant — that be shot Elliott willfully, with premeditation and deliberation. Defendant testified: “I ran around the bouse three times and told him I did not want any trouble and ran around the bouse then, and the next time be came around the bouse and met me, and I was so worried and so disgusted. I do not know bow it happened. I never did get to the baskets. That is the way it happened. ... I don’t know a bit more about what happened then than a monkey. I have told to the best of my knowledge all I know. I am pleading for the mercy of the court if they can give it.”

The defendant excepted and assigned error to the following evidence: (1) “Q. Now, please state what you beard Dollie Lee Hudson say to Mr. Elliott while you were in there? A. Mr. Elliott was over there copying the tobacco sales slip from Fenner’s Warehouse and banded the one be copied to Dollie Lee Hudson and Dollie Lee said he did not want that one, that be wanted the original that came from the warehouse, and Mr. Elliott said, £I want to keep that in case I want to raise some tobacco next year.” Hudson started out the door. (2) Q. If you know, will you tell bis Honor and the jury where be carried bis purse, bis bill folder, where be kept bis money, if you know? A. In bis left hip pocket. (3) Q. Tell bis Honor and the jury what be beard Dollie Lee Hudson say when be was going out of the store after drinking the Pepsi-Cola in Mrs. Asa Modlin’s store. A- He said when be was going out of the door, and near about to the door, T am going to kill me a man on the way home or home one and get in the woods.’ (4) (Testimony of Edward Elliott.) Q. What did be say to you? A. He said, ‘You come after the package you sent for’ and I said £Yes.’ He said, £I have the stuff you sent after here’ and be bad it with him when be came to the car. At that time be delivered to me three pints of whiskey, A.B.C. store whiskey, one pint for me and the other two pints for two other people. . . . When I went to Dollie Hudson’s bouse I parked my car beside the road, about 35 or 40 yards from the bouse to the road where my car was parked. I did not hear the sound of any shotgun at the time. The only conversation I had with Dollie Hudson he told me he had the stuff I sent after. Q. What did he say? A. He said he looked for me in passing to give it to me but did not see anything of me, that Mr. Elliott said he would bring him home but he stopped to eat supper and he drove Mr. Elliott’s car home and had to carry it back. At that time a car was standing in his yard. I don’t know where he got the packages from when he came to the ear with them. I did not stay there over three or four minutes, left and drove back toward Rich Square. I heard no shotgun fire.”

As to the first contention: It tended to show motive and was some evidence, the weight was for the jury. Then again, the defendant testified to the same effect. In Shelton v. R. R., 193 N. C., 670, at p. 674, we find: “It is thoroughly established in this State that if incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been given in other parts of the examination without objection, the benefit of the exception is ordinarily lost.” Tillett v. R. R., 166 N. C., 515; Beaver v. Fetter, 176 N. C., 334; Marshall v. Telephone Co., 181 N. C., 410.

As to the second, contention: The charge of the court below is not in the record and the presumption is that the court below charged the law applicable to the facts. The bill of indictment alleges “Unlawfully, willfully, and feloniously, with premeditation and deliberation and of his malice aforethought.” Under this bill it was competent on premeditation and deliberation to- show that the motive was robbery, and there is circumstantial evidence to that effect.

As to the third contention: This regarded the alleged thréat. It was made after the dispute over the tobacco sales. It was not too remote or indefinite under the facts in this case. Its weight was for the jury.

In S. v. Bowser, 214 N. C., 249 (253) (quoting from S. v. Shouse, 166 N. C., 306), it is said: “General threats to kill not shown to have any reference to deceased are not admissible in evidence, but a threat to kill or injure someone not definitely designated are admissible in evidence where other facts adduced give individuation to it,” citing S. v. Payne, 213 N. C., 719. S. v. Johnson, 176 N. C., 722; S. v. Wishon, 198 N. C., 762; S. v. Hawkins, 214 N. C., 326.

As to the fourth contention: The exception to the testimony of Edward Elliott cannot be sustained. Testimony to the same effect appears in other parts of the record without objection from the defendant’s own testimony.

Defendant contended that the before mentioned evidence “Was irrelevant as set out in all the above exceptions and the cause of the defendant was prejudiced by the admissions, in that it tended to excite the commiseration of the jury for the deceased and tended to lead them to act on sentiment and sympathy instead of proof. S. v. Arnold, 35 N. C., 184.”

As stated, we think none of the contentions can be sustained. The rule stated in 1 Wharton, Criminal Evidence (11th Ed.), sec. 230, at p. 274, is as follows: “Facts tending to create sympathy or prejudice. Evidence which is offered solely for the purpose of creating sympathy for the accused, or which is offered for the sole purpose of improperly appealing to the prejudice of the jury against the accused, should be excluded. However, evidence which is otherwise competent and material should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.”

It should be noted that in the only case cited by the defendant in support of his position, the testimony was held to be competent and not calculated to prejudice the minds of the jury although the court did correctly state by way of dicta that evidence really irrelevant in point of law may have such a tendency, and that if it did, to admit it would be erroneous. S. v. Arnold, 35 N. C., 184.

The defendant further contends: “It was error to have denied the motion of the defendant that all evidence tending to show robbery as a motive be stricken from the record. The indictment alleges that the defendant, ‘with force and arms, did unlawfully, willfully and feloni-ously, with premeditation and deliberation and of his malice aforethought kill and murder one Hampton Elliott.’ By inserting in the bill of indictment the words ‘premeditation and deliberation,’ murder in the perpetration of a robbery was excluded therefrom. By omitting the words, ‘With premeditation and deliberation,’ from the bill of indictment, the defendant would have been put on notice that evidence tending to show that the murder committed in the perpetration of a robbery or any other felony would have been admissible, but by inserting the elements of premeditation and deliberation in the bill of indictment, the State forfeited its right to show anything but premeditated and deliberate murder. The bill of indictment itself dismissed from the mind of the defendant all idea of a defense against the robbery element.” This contention cannot be sustained.

The bill of indictment alleged “Unlawfully, willfully and feloniously, with premeditation and deliberation and of his malice aforethought.” This charge was sufficient, under the statute heretofore cited, if the facts justified it, to convict the defendant of first degree murder. The jury convicted him “Of the felony and murder as charged in the bill of indictment in the first degree.” To be sure the bill did not charge that the murder was “committed in the perpetration or attempt to perpetrate . . . robbery . . . shall be deemed murder in the first degree and shall be punishable with death.” The circumstantial evidence as to killing to rob was some evidence on the charge of premeditation and deliberation. The presumption, the charge not being in the record, is that the law on all the aspects of the evidence, was properly presented to the jury in the charge. The evidence relating to robbery was relevant for the purpose of establishing a motive for the killing. It is always competent to show the motive for the commission of a crime, although this does not constitute an element of the crime. S. v. Grainger, 157 N. C., 628; S. v. Wilkins, 158 N. C., 603; S. v. Allen, 197 N. C., 684. Thus, evidence of robbery would be admissible as part of the chain of evidence establishing murder in the first degree with premeditation and deliberation.

The defendant contends, lastly, that there was error in the following: “Q. Mr. Outland, you testified as to the conversation you had with Dollie Lee Hudson — what statement, if any, did he make to you in regard to what he did with the car when he took it? A. He said after he shot him he went in the house, changed clothes and left, took the car and went to Petersburg; said he parked the car on a log camp or sawmill lot, and locked it and left the keys on the running-board.”

Defendant’s contention is that the answer was erroneously admitted in that the following part was not in response to the solicitor’s question and was in the nature of a confession which might or might not have been voluntary: “He said after he shot him he went in the house, changed clothes and left.” The only objection, it will be noted, was made before the answer was given. No motion to strike the answer was made. The exception is untenable, in the first place, because the objection that the answer was unresponsive or improper in other respects was waived by failure to move that it be stricken.

In Gilland v. Stone Co., 189 N. C., 783, at p. 786, the following statement appears: “If defendant deemed the statement of the witness, which was not in response to the question directed to him by counsel, but voluntarily made, incompetent and prejudicial, it should have directed its objection to the court, accompanied by a motion to strike the objectionable statement from the record, and by a request for an instruction, if desired, to the jury that the statement had been stricken from the record and should not be considered as evidence.” Luttrell v. Hardin, 193 N. C., 266 (269); S. v. Gooding, 196 N. C., 710 (711). We think the evidence competent. If not voluntary, defendant should have shown it by evidence on the voir dire.

In S. v. Hammonds, 216 N. C., 67 (75), it is written: “In S. v. Steele, 190 N. C., 506 (511-12), Varser, J., for the Court said: ‘The requirement, in first degree murder, in order to constitute “deliberation and premeditation” does not require any fixed time beforehand. These mental processes must be prior to the killing, not simultaneous, “but a moment of thought may be sufficient to form a fixed design to kill,” ’ ” citing numerous authorities to the same effect. The record discloses two voluntary confessions made by defendant that he killed with premeditation and deliberation.

In S. v. Grier, 203 N. C., 586 (589), it is said: “But every confession must be voluntary. The test is whether it was made under circumstances that would reasonably lead the person charged to believe that it would be better to confess himself guilty of a crime he had not committed. It is expressed in various ways. The confession is inadmissible if ‘the defendant was influenced by any threat or promise,’ or if it is ‘induced by hope or extorted by fear,’ or if ‘fear is 'excited by a direct charge or hope is suggested by assurance,’ or if extorted by ‘threats, promises, or any undue influence,’ or if ‘wrung from the mind by the flattery of hope or the torture of despair,’ or by ‘actual force’ or the ‘hope of escape,’ or the statement, ‘It will be lighter on you.’ S. v. Roberts, supra (12 N. C., 259); S. v. Lowhorne, supra (66 N. C., 638); S. v. Howard, supra (92 N. C., 772); S. v. Whitfield, 70 N. C., 356; S. v. Myers, 202 N. C., 351; S. v. Livingston, ibid., 809.” The confession in the present case was not characterized by any of these or similar circumstances, therefore competent.

The defendant in most particulars admitted the material evidence of the State, but as to the actual killing said, “I don’t know a bit more what happened than a monkey.” After Cain killed Abel, it is written: “And the Lord said unto Cain, ‘Where is Abel, thy brother?’ And he said, ‘I know not, Am I my brother’s keeper?’ ” (Gen. 4:9.)

We can find no prejudicial or reversible error on the record.

No error.