State v. . Ward

104 S.E. 531, 180 N.C. 693, 1920 N.C. LEXIS 184

• Court: Supreme Court of North Carolina
• Decided: November 4, 1920
• Status: Published

Opinion

AlleN, J.

An appeal from a judgment rendered prior to tbe commencement of a term of this Court must be docketed in the Supreme Court at the next succeeding term.(Rule 5, Porter v. R. R., 106 N. C., 479), and the defendant having failed to comply with this rule, the appeal is dismissed, not, however, without an examination of the record to see if there is any substantial error, as the life of the defendant is involved.

Three eye-witnesses testified to the shooting of the deceased by the defendant, and that he fired four shots, two of them after the deceased had fallen.

There is not the slightest evidence of provocation or legal excuse, and evidence of malice is abundant.

The defense is insanity, and there is evidence to support it.

The defendant excepted because the solicitor said, while the jury was being selected, that he understood the defendant did not deny the killing.

We see nothing improper in the remark, and it could not have been prejudicial, as the case was tried upon the question of insanity, and it was not disputed that the defendant killed the deceased.

Also to the following question, asked by the solicitor on cross-examination of Josh Nobles:

“Q. When he got drunk or was drinking he was in a high temper was he not?”

The question was permissible, but if not, the answer was favorable to the defendant: “So far as I know he was always about like other men. He was feeling good and all, and always had a whole lot to say and do, and never appeared to be a dangerous man when he was drinking.”

There are four other exceptions, none of them with more force than those referred to.

The defendant seems to rely principally on the exception that, “That the court erred in allowing the solicitor for the State to ask the expert witness, Dr. R. B. Whitaker, the following question: ‘If the jury should find that the defendant on 28 August left his home some time after 5 o’clock, walked two miles, walked straight, carried on a rational conversation with parties on the road, and after he arrived at Mr. Mercer’s he talked to Mr. Mercer in a rational manner, and afterwards he shot the deceased, left there walking straight, carrying on a rational conversation with parties after the shooting, would you say, in your opinion, he was so under the influence of whiskey that he was in a crazy condition and did not know what he was doing?’ and to the answer thereto, as follows: 'If that should be found, I should say no.’ ”

Dr. Whitaker was examined in behalf of the defendant, and this was in reply.

The defendant propounded a question, based on facts he contended he had proved, and the solicitor, on cross-examination, asked the opinion of the expert on facts he claims were established,' which was entirely proper.

The question and answer, however, prove nothing, as any one would say the defendant was not in a crazy condition if he walked straight before and after the killing, and carried on rational conversations before, at the time of, and after the killing.

There is also an exception to a remark of counsel, assisting the State, in his argument to the jury, which we could not consider because the exception was not entered until the case on appeal was served. S. v. Lewis, 93 N. C., 581; S. v. Suggs, 89 N. C., 527; Byrd v. Hudson, 113 N. C., 203. Objection to the course of argument must he taken at the time.

Appeal dismissed.