State v. . King

37 S.E.2d 684, 226 N.C. 241, 1946 N.C. LEXIS 430

• Court: Supreme Court of North Carolina
• Decided: April 10, 1946
• Status: Published

Opinion

WiNBORNE, J.

The principal assignment of error brought forward on this appeal challenges the competency of the testimony of the sheriff as to statement of defendant as to his purpose in going into the Hardy house at the time of the killing of Mrs. Hardy. The assignment is untenable for several reasons, among which are these:

First: “A murder . . . which shall be committed in the perpetration or attempt to perpetrate any . . . rape . . . burglary or other felony, shall be deemed to be murder in the first degree . . .” G. S., 14-17, formerly C. S., 4200. For application see S. v. Bennett, ante, 82; S. v. Mays, 225 N. C., 486, 35 S. E. (2d), 494; S. v. Dunheen, 224 N. C., 738, 32 S. E. (2d), 322; S. v. Miller, 219 N. C., 514, 14 S. E. (2d), 522, and numerous others.

Thus when a homicide is committed in the perpetration of the capital felony of rape, the State is not put to the proof of premeditation and deliberation. In such event the law presumes premeditation and deliberation. Applying this principle to the present case, defendant is charged with murder in first degree. Hence, it is competent for the State to show that the killing was done in the perpetration or attempt to perpetrate the capital offense of rape.

Second: The evidence is competent in any event for purpose of showing a motive for the crime. It is competent to show motive for the commission of a crime, although this does not constitute an element of the crime charged. See S. v. Lefevers, 216 N. C., 494, 5 S. E. (2d), 55; S. v. Hudson, 218 N. C., 219, 10 S. E. (2d), 730; S. v. Oxendine, 224 N. C., 826, 32 S. E. (2d), 648; S. v. Smith, 225 N. C., 78, 33 S. E. (2d), 472.

Moreover, if the testimony were incompetent for any purpose, any error in its admission would be harmless for that (a) testimony to the same effect was admitted in evidence without objection, S. v. Hudson, supra; S. v. Oxendine, supra, and (b) for that defendant, as a witness for himself, stated, without objection, that he had made substantially the same admission to another person. S. v. Matheson, 225 N. C., 109, 33 S. E. (2d), 590.

All other assignments of error are of formal nature, and, in the light of the record and the case on appeal, are without merit and require no •special treatment.

Finally, it is appropriate to say that counsel for defendant, in their diligence, have failed to point out error in the trial below, and, after careful consideration, none appears to us. Apparently the facts have been fairly presented to the jury under a charge to which there is no exception, and in the judgment on the verdict of the jury we find

No error.