State v. . Phillips

46 S.E.2d 720, 228 N.C. 595, 1948 N.C. LEXIS 295

• Court: Supreme Court of North Carolina
• Decided: March 17, 1948
• Status: Published

Opinion

Stacy, O. J.,

after stating tbe facts as above: Tbe State contended on tbe second trial, as well as on tbe first, tbat tbe range of the death bullet plus the absence of powder burns left the theory of suicide with no substantial basis of fact.

In support of this contention, the prosecution had experiments made to determine whether bullets fired from the death pistol at close range would show powder burns on the targets. They did. On cross-examination, one of the officers who made the experiments stated that “the amount of powder in a shell and the type of powder would have right much to do with discoloration, but it would have nothing to do with what we call powder burns. These are powder burns. That is what I am talking about.”

The competency of experimental evidence depends upon its trustworthiness to aid in the proper solution of the problem in hand. S. v. McLamb, 203 N. C., 442, 166 S. E., 507; S. v. Young, 187 N. C., 698, 122 S. E., 667; Draper v. R. R., 161 N. C., 307, 77 S. E., 231; Cox v. R. R., 126 N. C., 103, 35 S. E., 237; Arrowood v. R. R., 126 N. C., 629, 36 S. E., 151; Anno. S A. L. R., 18, S. 85 A. L. R., 479; 20 Am. Am., 627; 32 C. J. S., 440. "When the experiment is carried out under substantially similar circumstances to those which surrounded the original transaction, and in such a manner as to shed light on that transaction, the results may be received in evidence, although such experiment may not have been performed under precisely similar conditions as attended the original occurrence. The want of exact similarity would not perforce exclude the evidence, but would go to its weight with the jury. 1 Michie on Homicide, 832. Whether the circumstances and conditions are sufficiently similar to render the results of the experiment competent is of course a preliminary question for the court, and unless too wide of the mark, the ruling thereon will be upheld on appeal. S. v. Holland, 216 N. C., 610, 6 S. E. (2d), 217; S. v. Plyler, 153 N. C., 630, 69 S. E., 269; Henderson v. R. R., 132 Va., 297, 111 S. E., 277; Ruestis v. Aetna Life Ins. Co., 131 Minn., 461, 155 N. W., 643; 20 Am. Jur., 628.

“The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient” — Edwards, J., in Shepherd v. State, 51 Okla. Crim., 209, 300 P., 421.

True it is, unless the requirement of substantial similarity exist, or be duly observed, the experimental evidence should be rejected. Caldwell v. R. R., 218 N. C., 63, 10 S. E. (2d), 680; Blue v. R. R., 117 N. C., 644, 23 S. E., 275; Neice v. N. & W. Ry. Co., 155 Va., 211, 154 S. E., 563; McLendon v. State, 90 Fla., 272, 105 So., 406; Spires v. State, 50 Fla., 121, 39 So., 181, 7 Ann. Cas., 214; People v. Solani, 6 Cal., 103, 91 P., 654; Com. v. Tucker, 189 Mass., 457, 76 N. E., 127, 7 L. R. A. (N.S.), 1056. Cf. Simpson v. Oil Co., 219 N. C., 595, 14 S. E (2d), 638. This is largely a matter to be decided in tbe light of all the attendant facts and circumstances. The measure of permissible variation in the conditions of the experiment from those of the occurrence is usually determined by whether such variation would tend to confuse or to mislead the jury. The object of every trial is to find the truth of the matter in controversy. If the experimental evidence contribute to this end, it is admissible; otherwise it should be excluded. S. v. Plyler, supra.

While the experimental conditions here were not identical with those attending the matter under review, still they were sufficiently similar for the experimental results to throw light upon the controversy and to assist the jury in making true deliverance in the case, 20 Am. Jur., 628. Hence, the ruling of the court in admitting the evidence will be sustained. S. v. Young, supra.

The fact that the smokeless powder in the experimental cartridges was not the same as the flashless powder in the death cartridge would not perforce amount to such a difference in particulars as to render the experimental evidence inadmissible. As stated by one of the officers, it was not the powder discoloration they were interested in determining, but the powder burns, which result from firing a pistol such as the death pistol at close range, regardless of the kind of powder used. 22 O. J., 759.

Other exceptions pertaining to the admission of evidence have been pressed with vigor and confidence, but a careful perusal of the transcript leaves us with the impression that they, too, should be overruled.

A number of exceptions have been taken to the charge. Some of them are not altogether free from difficulty. The instructions to the jury are quite lengthy. They cover 124 pages of the record, and contain several inexact expressions, which the defendant has pointed out in exceptive assignments of error. However, considering the instructions as a whole, or in their entirety, and contextually, we are constrained to resolve the exceptions in favor of the validity of the trial. It is not apparent that the alleged errors affected the result. We are disposed to think they did not, especially in the light of the defendant’s own testimony.

The verdict and judgment will be upheld.

No error.