State v. . Satterfield

176 S.E. 466, 207 N.C. 118, 1934 N.C. LEXIS 394

• Court: Supreme Court of North Carolina
• Decided: October 10, 1934
• Status: Published

Opinion

Stacy, O. J.,

after stating the case: Only the inculpatory evidence has been stated, as the principal exception relied upon by the defendant is the refusal of the court to sustain his demurrer to the evidence or to dismiss the action as in case of nonsuit under C. S., 4643. S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; S. v. Cohoon, 206 N. C., 388. With respect to the defendant’s alibi, it is sufficient to say he was given the full benefit of all exculpatory matters before a jury of the vicinage. S. v. Steen, 185 N. C., 768, 117 S. E., 793. The evidence was such as to require its submission to the twelve. S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. McLeod, 198 N. C., 649, 152 S. E., 895.

Counsel for the defendant assailed the State’s case with force and vigor, pointing out the apparent contradictions in the testimony and the equivocation of some of the witnesses, but these were matters bearing upon the weight of the evidence or its credibility, and not upon its competency. The jurors alone are the triers of the facts. S. v. Beal, supra. In passing upon the sufficiency of the evidence, raised by demurrer or motion to nonsuit, tbe court is required merely to ascertain whether there is any competent evidence to sustain the allegations of the indictment. S . v. Marion, 200 N. C., 715, 158 S. E., 406; S. v. Carlson, 171 N. C., 818, 89 S. E., 30; S. v. Rountree, 181 N. C., 535, 106 S. E., 669.

Nor was there error in limiting the jury to one of two verdicts— murder in the first degree or not guilty. S. v. Spivey, 151 N. C., 676, 65 S. E., 995; S. v. Ferrell, 205 N. C., 640, 172 S. E., 186; S. v. Myers, 202 N. C., 351, 162 S. E., 764; S. v. Sterling, 200 N. C., 18, 156 S. E., 96; S. v. Jackson, 199 N. C., 321, 154 S. E., 402. It is provided by C. S., 4200, that a murder which shall be perpetrated by means, inter alia, of lying in wait, as was the case here, shall be deemed to be murder in the first degree. S. v. Keaton, 206 N. C., 682; S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Smith, 201 N. C., 494, 160 S. E., 577; S. v. Wiseman, 178 N. C., 784, 101 S. E., 629.

The competency of the little girl to testify as a witness in the case was a matter resting in the sound discretion of the trial court. S. v. Merrick, 172 N. C., 870, 90 S. E., 259.

Speaking to the identical question in S. v. Edwards, 79 N. C., 648, Reade, J., delivering the opinion of the Court, said: “Formerly the age at which infants might be examined as witnesses was almost arbitrary. They were not regularly admissible under fourteen, subject to exceptions. At one time it was a general rule that none could be admitted under nine years, very few under ten. Gilb. Ev., 144; 1 Hale P. C., 302; 2 Ib., 278; 1 Phil. Ev. But of late years, since the means and opportunities for the early cultivation of the intellect have multiplied, a more reasonable rule has been adopted, and age is not to (the) test, but the degree of understanding which they possess, including their moral and religious culture. 1 Phil. Ev.; 1 East P. C., 448; 1 Leach, 190; Roscoe Cr. Ev., 106 n. . . .

“In the case of infants where there was sufficient capacity to understand the transaction and to communicate it, but not sufficient moral and religious impression to comprehend the obligation of an oath, time has been allowed to make the impression and to cultivate the conscience. 1 Leach, 199, 430.

“There being now no arbitrary rule as to age, and it being a question of capacity, and of moral and religious sensibility in any given case whether the witness is competent, it must of necessity be left mainly if not entirely to the discretion of the presiding judge. S. v. Manuel, 64 N. C., 601. It may be stated, however, that a child of tender years ought to be admitted with great caution; and where there is doubt it ought to be excluded.”

Likewise, allowing the solicitor to offer additional evidence after the argument had begun, was a matter addressed to the sound discretion of the trial court, and there is nothing on the record to suggest any abuse of discretion in tbis respect. S. v. King, 84 N. C, 737; S. v. Haynes, 71 N. C., 79; S. v. Rash, 34 N. C., 382.

It is not perceived upon what ground tbe motion in arrest of judgment could have been allowed. Such, a motion is proper when — and only when — some error or fatal defect appears on the face of the record. S. v. Bittings, 206 N. C., 798; S. v. Grace, 196 N. C., 280, 145 S. E., 399; S. v. McKnight, 196 N. C., 259, 145 S. E., 281; S. v. Mitchem, 188 N. C., 608, 125 S. E., 190.

A searching investigation of the record leaves us with the impression that the case is free from reversible error. Hence, the verdict and judgment will be upheld.

No error.

ScheNCK, J., took no part in the consideration or decision of this case.